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January 30 and February 2, 2018 Digests

Posted By Administration, Monday, February 5, 2018

Kansas Supreme Court

Attorney Discipline

NO. 25,188—JANUARY 30, 2018

FACTS: In a letter signed January 9, 2018, Jeffery B. Bitner voluntarily surrendered his license to practice law in Kansas. At the time of surrender, a complaint was pending which alleged multiple violations of the Kansas Rules of Professional Conduct.

HELD: The court found that the surrender of Bitner's license should be accepted and Bitner was disbarred.


constitutional law—criminal procedure—sentencing—statutues
state v. albright
kingman district court—affirmed
No. 116,408—february 2, 2018

FACTS: Albright was convicted in 1999 of first-degree murder, and a Hard 40 sentence was imposed. In 2002, Albright filed a 60-1507 motion alleging ineffective assistance of counsel. In a new trial ordered by Court of Appeals, jury again convicted Albright of first-degree murder, and a Hard 40 sentence was imposed in 2005. Conviction and sentence affirmed, finding no Apprendi violation in sentencing. State v. Albright, 283 Kan. 418 (2007). In 2016, Albright filed motion for resentencing, asserting his Hard 40 sentence was unconstitutional under Alleyne v. United States, 570 U.S. 99 (2013). District court viewed motion as a collateral attack under K.S.A. 50-1507(b) and denied the motion. Albright appealed, arguing his Hard 40 life sentence is unconstitutional under Alleyne because it is the result of judicial fact-finding.

ISSUE: Challenge to the sentence

HELD: Albright was entitled to no relief whether the district court correctly construed the pleading as a collateral attack, or whether it should have been characterized as a motion to correct an illegal sentence. Albright cannot use K.S.A. 22-3504 to challenge the constitutionality of his sentence, and there is no showing of manifest injustice to consider an untimely filed 60-1507 motion. Additionally, Alleyne cannot be applied retroactively to cases that were final when Alleyne was decided.

STATUTES: K.S.A. 2017 Supp. 22-3504; K.S.A. 22-3504, 60-1507, -1507(b), -1507(f)(2)


state v. brune
johnson district court—affirmed
No. 116,720—February 2, 2018

FACTS: Brune pled guilty to two counts of first-degree felony murder.  Consecutive Hard 25 sentences imposed. On appeal Brune claimed the district court erred in refusing to run the sentences concurrent to each other. Brune argued consecutive sentences were overly harsh given his acceptance of responsibility, expression of remorse, willingness to enroll in rehabilitative programs, and negative effects of sentence on his family relationships.

ISSUE: Abuse of discretion in sentencing

HELD: Kansas Sentencing Guidelines Act does not preclude review of sentences classified as off-grid crimes, but under facts of this case the district court did not abuse its discretion by ordering consecutive service of Brune’s hard 25 sentences. 

STATUTE: K.S.A. 2016 Supp. 22-3601(b)(3)

Tags:  Attorney Discipline  Johnson  Kingman 

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January 26, 2018 Digests

Posted By Administration, Monday, January 29, 2018

Kansas Supreme Court


criminal law—criminal procedure—jury instructions—sentencing—statutes
state v. mclinn
douglas district court—affirmed in part, reversed in part, remanded
no. 114,506—january 26, 2018

FACTS: Jury convicted McLinn of first-degree premeditated murder. At trial she did not deny killing the victim, but argued a mental disease or defect (dissociative identity disorder) prevented her from forming the requisite culpable mental state. Jury then determined the killing was done in an especially heinous, atrocious, or cruel manner. District court imposed hard 50 life sentence with post-release supervision. McLinn appealed alleging: (1) instructional error regarding the intent needed to establish criminal liability; (2) jury should have been sua sponte instructed on second-degree intentional murder; (3) jury should have been allowed to consider the disposition of her case in determining guilt; (4) district court improperly limited defense counsel from telling jury McLinn would not mind a second trial; (5) cumulative error denied McLinn a fair determination of guilt; (6) insufficient evidence supported the jury’s finding that the murder was especially heinous, atrocious, or cruel; (7) district court erred in declining jury’s request for definition of “heinous,” “atrocious,” and “cruel;” (8) K.S.A. 2013 21-6624 is unconstitutionally vague; (9) district court erred in refusing to depart from a hard 50 sentence; and (10) error to impose lifetime post-release supervision.

ISSUES: (1) Mental disease or defect instruction, (2) instruction on lesser included offense, (3) instruction to not consider disposition of case, (4) restriction on closing argument, (5) cumulative error in guilt phase, (6) sufficiency of the evidence—finding of an especially heinous, atrocious, or cruel murder, (7) response to jury request for definitions, (8) constitutionality of K.S.A. 2013 Supp. 21-6624, (9) hard 25 sentence request, (10) lifetime postrelease supervision

HELD: District court’s mental disease or defect instruction was not clearly erroneous. Statutory definition of “culpable mental state” is not broadened to include premeditation as a culpable mental state. The state must prove premeditation and an intent to kill at the time the murder is committed. Proof of one does not prove the other.

On the facts in this case, an instruction on second-degree intentional murder would have been factually and legally appropriate, but the failure to sua sponte give the unrequested instruction was not clearly erroneous.

Pattern jury instruction, that disposition of the case was not to be considered in arriving at jury’s verdict, merely emphasized jury’s duty to determine guilt or innocence. It did not detract from instruction that informed jurors of what would happen if they determined McLinn not guilty by reason of mental disease or defect.

District court did not err in restricting defense counsel’s remarks during closing argument. Preliminary instruction given prior to opening statements, about the expense and inconvenience of a mistrial if jurors failed to follow rules, was properly issued. To allow a closing argument that McLinn would be fine with a second trial could be interpreted as encouraging jurors to violate their oath to return a verdict based solely on the evidence and to instead consider the consequences of a divided verdict. State v. Salts, 288 Kan. 263 (2009), is contrasted.

The finding of a single error defeats McLinn’s cumulative error claim.

Under facts of this case, sufficient evidence was presented of an especially heinous, atrocious, or cruel murder. K.S.A. 2013 Supp. 21-6624(f) is interpreted.

No abuse of district court’s discretion in declining to further define “heinous,” “atrocious,” or “cruel” when instructing the jury.

K.S.A. 2013 Supp. 21-6624 is not unconstitutionally vague.

District court did not abuse its discretion in declining to impose a hard 25 sentence.

District court should have imposed lifetime parole. Post-release supervision portion of McLinn’s sentence was vacated. Case remanded for resentencing to impose lifetime parole.

CONCURRENCE (Rosen, J.)(joined by Nuss C.J. and Stegall J.): Consistent with prior dissenting opinions on this issue, disagrees with majority’s holding that district court erred in not instructing jury on the lesser included offense of second-degree murder.

CONCURRENCE (Stegall, J.): Joins J. Rosen’s concurrence, and agrees with J. Johnson’s assessment of impact of State v. Tahah, 302 Kan. 783 (2015), on the instant case. District court made factual error and abused its discretion by restricting defense counsel’s closing argument, but error was harmless.

CONCURRENCE and DISSENT (Johnson, J.)(joined by Biles, J. in the concurrence): Concurs with majority but for its assessment of district court’s restrictions on defense counsel’s closing argument. Either the initial coercive instruction was wrong, or the preclusion of defense argument was wrong. Either way there was error, even if harmless.

DISSENT (Beier, J.): Jury instruction that addressed McLinn’s mental disease or defect should have included a reference to premeditation which is part of the mens rea of first-degree murder. Majority’s interpretation of K.S.A. 2013 Supp. 21-5202(a) is criticized. On this unique record the error was reversible.

STATUTES: K.S.A. 2013 Supp. 21-5202, -5202(a), -5202(d), -5209, -5402(a)(1), -6620(b)(6), -6623, -6624, -6624(f), -6624(f)(2), -6624(f)(3), -6624(f)(5), -6625, -6625(a)(1)-(8), 22-3414(3); K.S.A. 21-3401(a), 22-3220, -3420, -3504(1); K.S.A. 1992 Supp. 21-3401(a)(1); and K.S.A. 21-3401 (Weeks)

Kansas Court of Appeals


criminal procedure—sentencing—statutes
state v. sotta
sumner district court—affirmed
no. 117,187—january 26, 2018

FACTS: Sotta pled guilty to aggravated assault with a deadly weapon and aggravated burglary. Sentence imposed included registration as a violent offender under the Kansas Offender Registration Act (KORA). Sotta appealed, arguing registration under KORA was error because district court failed to comply with K.S.A. 2016 22-4902(e)(2) by making a finding on the record that Sotta used a deadly weapon when he committed aggravated assault.

ISSUE: KORA Registration—Record Finding of a Deadly Weapon

HELD: Based on Sotta’s admissions in response to court inquiries during the plea hearing, district court twice stated the factual basis for Sotta’s plea, including that Sotta had put another person in reasonable apprehension of immediate bodily harm with a deadly weapon, and the weapon was a gun. Court’s statement at the plea hearing constituted a finding on the record that Sotta had committed aggravated assault with a deadly weapon. Court order to register under KORA is affirmed, although it would have been better had the district court, in addition to the findings made, specifically stated that a deadly weapon had been used.

STATUTE: K.S.A. 2016 Supp. 22-4902(a), -4902(e)(1), -4902(e)(2)

Tags:  Douglas  Sumner 

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January 19, 2018 Digests

Posted By Administration, Tuesday, January 23, 2018
Updated: Monday, January 22, 2018

Kansas Supreme Court

Attorney Discipline

No. 22,228—JANUARY 16, 2018

FACTS: In a letter signed December 29, 2017, Theodore R. Hoefle voluntarily surrendered his license to practice law. At the time of surrender, a disciplinary complaint was pending against Hoefle. The complaint alleged that Hoefle violated Kansas Rule of Professional Conduct 8.4 (misconduct) by failing to correct a false insurance claim and failing to correct false information in a police report.

HELD: The court found that the surrender should be accepted. Hoefle is disbarred.


appeals—appellate procedure—attorney and client—habeas corpus—jurisdiction—postconviction remedies
mundy v. state
lyon district court—affirmed; court of appeals—affirmed
No. 112,131—january 19, 2018

FACTS: Mundy was found guilty of making a false claim to the Medicaid program and obstructing a Medicaid fraud investigation. Sentence imposed included a suspended prison term, probation, and payment of restitution and costs. While on probation Mundy filed a pro se 60-1507 motion, alleging, in part, ineffective assistance of trial attorney. District court appointed counsel. After reviewing the record, the district court summarily denied the 60-1507 motion, finding Mundy failed to show that trial counsel’s representation was not objectively reasonable, and that Mundy failed to plead sufficient facts for an evidentiary hearing. 60-1507 counsel filed notice of appeal. Appellate counsel appointed. Mundy argued, in part, that her release from probation did not deprive courts of jurisdiction, that 60-1507 counsel was ineffective by filing only a bare notice of appeal, and that district court’s summary denial of the 60-1507 motion denied her due process by not following procedural options in Lujan v. State, 270 Kan. 163 (2000). In an unpublished opinion, the Court of Appeals agreed that Mundy’s release from probation did not deprive courts of jurisdiction, found no jurisdiction to consider claim raised for first time on appeal that 60-1507 counsel was ineffective because issue was not included in the notice of appeal, and affirmed the district court’s summary denial of the 60-1507 motion. Mundy’s petition for review was granted.

ISSUES: (1) Jurisdiction, (2) notice of appeal, (3) ineffective assistance of 60-1507 counsel, (4) adjudication of a 60-1507 motion

HELD: Issue of first impression for Kansas Supreme Court. A Kansas court obtains jurisdiction over a 60-1507 motion if it is filed while a movant is in custody, and jurisdiction is not lost if the movant’s custody ends before judgment on the motion becomes final. Adopting the standard applied in habeas context, Mundy’s release from probation did not render her appeal moot because she still faced obligation to pay restitution and costs.

Court of Appeals erred in concluding it lacked jurisdiction to determine Mundy’s ineffective assistance of 60-1507 counsel claim. Panel’s approach effectively took away the availability of a proceeding under State v. Van Cleave, 239 Kan. 117 (1986). A notice of appeal stating the appeal is being taken from trial court’s decisions is sufficiently broad to give an appellate court jurisdiction to hear a claim that counsel appointed to handle 60-1507 proceeding was ineffective, even when the claim is raised for first time on appeal.

The claim of ineffective assistance of 60-1507 counsel is not reached or decided. Mundy was entitled to effective assistance of 60-1507 appointed counsel, but the record is insufficient to resolve that issue. Mundy never requested a Van Cleave remand and Supreme Court declines to sua sponte order a remand in this case.

K.S.A 2016 Supp. 60-1507 and Kansas Supreme Court Rule 183 are interpreted. Nothing in Lujan prevents a district court from concluding without a hearing—even after counsel has been appointed - that the motions, files, and records of a case conclusively show that the movant is entitled to no relief. In this case, Mundy’s 60-1507 motion did not merit an evidentiary hearing and the district court did not err in summarily dismissing the motion.  

STATUTES: K.S.A. 2016 Supp. 60-1507, -1507(a), -1507(b), -2103, -2103(b); and K.S.A. 21-3846(a)(1), -3849, 22-4506(b), 60-2101(b)

Tags:  appellate procedure  Attorney Discipline  disbarment  habeas corpus  Lyon  Lyon District  postconviction remedies 

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January 12, 2018 Digests

Posted By Administration, Tuesday, January 16, 2018

Kansas Supreme Court

Attorney Discipline

NO. 118,210—JANUARY 12, 2018

FACTS: A hearing panel determined that Phillips violated KRPC 8.4(g) (engaging in conduct adversely reflecting on a lawyer's fitness to practice law). The issue arose after Phillips made inappropriate sexual remarks to a prospective client. During the investigation, Phillips admitted to making the comments, apologized, and blamed his prior history of substance abuse as a precipitating factor.

HEARING PANEL: At the hearing, the panel concluded that Phillips was not fully honest when answering questions from the disciplinary administrator's office. After considering the other aggravating and mitigating factors, and the Disciplinary Administrator's conditional recommendation of probation, the hearing panel recommended that Phillips be suspended for one year with a two-year term of probation starting after 30 days.

HELD: The hearing panel's findings were deemed admitted. At oral argument, the Deputy Disciplinary Administrator introduced evidence to show that Phillips was not in compliance with his proposed probation plan. Because of this evidence, the court ruled that probation was not an appropriate disposition. The court suspended Phillips for one year and refused probation.


criminal law—fraud and deceit—statutes
state v. ward
johnson district court—reversed; court of appeals—affirmed
No. 111,640—january 12, 2018

FACTS: As a loan to All Construction Guaranteed Roofing and Restoration (ACG), a company formed and operated by Ward and Rhodes, Sweeney wrote a Bank of America check to ACG. Ward added his name as a payee on the check, and deposited it in his personal account at First National Bank. State charged Ward with theft by deception from ACG or Bank of America, and with making false information. On appeal, Wade claimed insufficient evidence supported the theft by deception conviction, and the State proved the crime of forgery rather than making false information. Court of Appeals agreed and reversed both convictions. State v. Ward, 52 Kan.App.2d 663 (2016). State’s petition for review granted.

ISSUES:(1) Theft by deception; (2) making false information

HELD:On facts in this case, insufficient evidence supported Ward’s conviction of theft by deception. No proof that either of the two possible victims named in the charging document and jury instruction was deceived by Ward. Departing from panel’s analysis, Supreme Court finds the theft by deception from Bank of America fails because First National Bank, rather than Bank of America, was deceived by Ward’s actions.

Making false information and forgery statutes are interpreted, with extensive discussion of their statutory history. A defendant’s conviction for making false information can be affirmed regardless of whether the criminal conduct pertains to his or her own business or affairs. Any earlier statement in or impression from State v. Rios, 246 Kan. 517 (1990), and Sate v. Gotti, 273 Kan. 459 (2002), to the contrary is explicitly rejected. Under facts in this case, evidence that Ward altered the payee line of a check was insufficient to prove he made false information.

STATUTES: K.S.A. 2016 Supp. 21-5801(a)(1), -5801(a)(2), -5811, -5823, -5823(a), -5824, -5824(a), 84-3-103(5); K.S.A. 2012 Supp. 21-5111(e), -5111(s); K.S.A. 21-5801, -5801(a)(2), -5824, -6804, -6807; K.S.A. 1996 Supp. 21-3711; K.S.A. 21-3711 (Ensley 1988); and K.S.A. 1970 Supp. 21-3710, -3711; G.S. 1923, 21-601 through 637

Kansas Court of Appeals


NO. 117,534—JANUARY 12, 2018

FACTS: Security Bank of Kansas City had a guaranty contract with Anthony Nichols to guarantee the debts of Tripwire Operations Group, LLC. When Tripwire defaulted on a credit card, the Bank sued Tripwire, Nichols, and Ryan Morris. After the district court granted summary judgment to the Bank, Nichols appealed. After the appeal was docketed but before it could be heard by the panel, the Bank moved to involuntarily dismiss this appeal on grounds of mootness. The Bank claimed that Nichols acquiesced in the judgment because the Bank exercised its right of setoff and took money out of Nichols' bank account to cover the judgment.

ISSUES: (1) Availability of setoff as remedy; (2) mootness; (3) acquiescence

HELD: Setoff is a statutory self-help remedy available to banks. There is no requirement that any judicial action occur before setoff is exercised. And the guaranty contract signed by Nichols included a setoff provision. In the absence of a stay of the judgment against Nichols, the Bank exercised its right of setoff and satisfied its claim against Nichols. Once the judgment was satisfied, the Bank filed a satisfaction of judgment. The satisfaction of judgment concluded this litigation, rendering this appeal moot. Because the setoff was not a voluntary relinquishment by Nichols, the doctrine of acquiescence did not apply.

STATUTES: K.S.A. 2016 Supp. 60-262(d), -2401; and K.S.A. 9-1206, 60-721


constitutional law—criminal law—evidence—fourth amendment—search and seizure
state v. bannon
sedgwick district court—affirmed
No. 112,212—january 12, 2018

FACTS: Acting on verified information, officers located Bannon in student apartment lobby and found a concealed hand gun during a pat-down search. Bannon filed motion to suppress this evidence, arguing it was taken during a warrantless search of his person within the curtilage of his apartment, or alternatively, the officers lacked reasonable suspicion or probable cause to seize and search him. District court denied the motion, and jury convicted Bannon of criminal carrying of a weapon. On appeal Bannon claimed he was in lawful possession of the firearm because the front lobby to his apartment building qualified as part of his abode or curtilage. He also claimed the district court erred in not granting his motion to suppress, arguing the evidence was discovered as a result of an improper pat-down search. In unpublished opinion, Court of Appeals found the motion to suppress should have been granted because a warrantless pat-down search occurred without evidence a law enforcement officer had an actual, subjective belief Bannon was armed and presently dangerous, or that officers were reasonably concerned for their safety or safety of others. State’s petition for review granted. Supreme Court reversed and remanded, adopting and applying a hybrid approach to the second step of a Terry stop: testimony as to officer’s subjective belief or fear is a factor for consideration in the objective analysis of the totality of the circumstances, but absence of such testimony does not invalidate the reasonableness of a frisk. State v. Bannon, 306 Kan. 886 (2017).

ISSUES: (1) Curtilage or abode, (2) motion to suppress

HELD: Issue of first impression in Kansas as to whether the lobby of an apartment building is considered the tenant’s land or abode under K.S.A. 2012 Supp. 21-6302(a)(4). Under analysis in recent unpublished Kansas Court of Appeals case and cases in other jurisdictions, the student apartment lobby in this case was not an extension of Bannon’s apartment or abode. More than nonexclusive permissive use with others is needed. Also, at time of the stop and frisk, Bannon was sitting in a chair reading. He was not using the lobby as an extension of his land through an ingress-egress easement, and had no right under an easement to possess a firearm in the front lobby.

District court’s denial of Bannon’s motion to suppress did not violate the Fourth Amendment. The stop of Bannon in the lobby was sufficiently public for officers to initiate the stop. Considering the totality of the circumstances, and applying the hybrid test adopted by the Supreme Court, it was objectively reasonable for the officers to believe Bannon had a gun and to perform a pat-down search for their safety and the safety of others.

STATUTES: K.S.A. 2012 Supp. 21-6302, -6302(a)(4)


criminal law—evidence—statutes
state v. brazzle
riley district court—affirmed
No. 116,649—january 12, 2017

FACTS: Brazzle was convicted of drug charges involving methamphetamine and possession of oxycodone based on gray pills identified by an officer using District court allowed State to present evidence that Brazzle was involved in undercover methamphetamine transactions a week before his arrest in this case. On appeal, Brazzle claimed the admission of this K.S.A. 60-455 evidence was error because he never claimed his possession of methamphetamine was innocent, and the potential prejudice outweighed its probative value. He next challenged the jury instruction on the elements for possession of oxycodone. Third, he claimed insufficient evidence supported the oxycodone conviction because the State failed to present evidence the pill was tested, and failed to present any evidence that Brazzle did not have a prescription for that drug.

ISSUES: (1) Admission of evidence, (2) jury Instruction, (3) sufficiency of the evidence - possession of a controlled substance, (4) proof of prescription

HELD: District court did not abuse its discretion by admitting the evidence under K.S.A. 60-455. By claiming the State could not prove the items discovered in the stopped vehicle belonged to him, Brazzle essentially raised a defense of innocence, and the evidence was highly probative of his intent to distribute the methamphetamine he possessed rather than to possess it for personal use.

Brazzle invited error by advocating the version of the instruction given to the jury.

Issue of first impression in Kansas. When sufficiency of the evidence for possession of a controlled substance is challenged, uncontroverted testimony by a witness identifying the substance through consultation with is sufficient to support jury’s conclusion beyond a reasonable doubt that the substance was that identified by the witness. Here, this evidence was admitted without objection and without any evidence to the contrary. The officer’s testimony was sufficient for jury to reasonably conclude the gray pills were oxycodone hydrochloride.

Relevant statutes are interpreted. Lawful possession of a controlled substance by prescription is an affirmative defense to the charge of possession of a controlled substance under K.S.A. 2016 Supp. 21-5706. A person charged with unlawful possession of a controlled substance must bring forward a claim of legal authorization to possess the controlled substance at issue.

CONCURRENCE and DISSENT (Atcheson, J.): Dissents from majority’s finding that sufficient evidence supported the possession of oxycodone conviction. Here the jurors had to speculate on the facts and basic details about the officer’s internet-based identification of the seized pills as oxycodone, and cases cited by the majority are inapposite to the majority’s conclusion.

STATUTES: K.S.A. 2016 Supp. 21-5706, 60-455, -455(b), 65-4107(b)(1)(N), -4107(b)(2), -4116(a), -4116(b), -4116(c), -4116(c)(3), -4123, -4123(a), -4123(b); K.S.A. 60-455, 65-4101 et seq.


constitutional law—due process—criminal law—criminal procedure—statutes
state v. owens
wyandotte district court—reversed and vacated
No. 116,979—january 12, 2018

FACTS: Owens was convicted in 2003 of aggravated indecent liberties with a child, and was required to register with sheriff four times a year. He did so in 2014, but was unable to pay the $20 fee for each registration. Each failure to pay was itself a crime absent compliance with K.S.A 2014 Supp. 22-4905(k)(3) which provides waiver of the fee payment only if the offender obtained a judicial finding of indigency prior to the required reporting. Owen challenged the constitutionality of that statute, as applied to him, as not providing procedural due process.

ISSUE: Due Process

HELD: Finding a defendant criminally liable for failure to pay the $20 registration fee under the Kansas Offender Registration Act violates the defendant’s procedural-due-process rights as applied in this case because Owens had no reasonably available path to get a court finding of indigency. Owens received no notice of a procedure he could use to get a court to determine he was unable to pay the fee before his registration dates, and Legislature provided no clear guidance about how one might do so.

STATUTE: K.S.A. 2014 Supp. 21-5203(f), 22-4903, -4903(c)(3), -4905, -4905(k)(3)

Tags:  Attorney Discipline  Johnson  Riley  Sedgwick  suspension  Wyandotte 

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January 5, 2018 Digests

Posted By Administration, Monday, January 8, 2018

Kansas Supreme Court


constitutional law—crimes and punishment—sentencing—statutes
state v. kinder
wyandotte district court—reversed; court of appeals—reversed
NO. 112,844—january 5, 2018

FACTS: Kinder entered no contest plea to one count of mistreatment of a dependent adult. District court imposed a presumptive 9-month sentence with 18-months’ probation, and awarded credit for 360 days of pretrial confinement. Kinder appealed, arguing probation was improper and violated Double Jeopardy Clause because he had already served his sentence of confinement. In unpublished opinion, Court of Appeals dismissed the appeal without addressing whether sentencing probation was error under Kansas Sentencing Guidelines Act (KSGA). Instead, the panel held there was no jurisdiction to review a presumptive sentence. Kinder’s petition for review granted.

ISSUE: KSGA Sentence of Probation

HELD: Panel’s dismissal of the appeal is reversed. Review is appropriate because Kinder is not actually challenging a presumptive sentence. District court erred in imposing probation. “Probation,” as defined by KSGA, cannot be imposed after the underlying full sentence of confinement has been served.

STATUTES:  K.S.A. 2016 Supp. 21-6603(e), -6603(g), -6615, -6803(q), -6804, -6804(a)(3), -6820(c)(1), 22-3716, -3716(c)(1)(B)-(E), -3716(c)(7), -3716(c)(11) -3717(d)(1)(C); K.S.A. 20-3018(b)

Kansas Court of Appeals


NO. 117,070—JANUARY 5, 2018

FACTS: Kerry and Stacy were involved in a romantic relationship. After issues arose, Kerry reported Stacy to the police and filed a petition for a protection from abuse order against him. The district court entered a final PFA order against Stacy that was to be in place until October 13, 2016. Prior to the expiration of that PFA, Kerry filed a motion to extend the PFA for an additional year. The matter was never set for hearing, although both parties and their attorneys made appearances before the district court. But Stacy did not learn about the extended PFA until an order was served on him. He moved to dismiss the extension, claiming that the lack of notice and hearing violated his due process rights. The district court denied that motion, claiming that the district court could extend the PFA without notice or hearing. Stacy appealed.

ISSUES: (1) Mootness; (2) due process considerations in extending the PFA; (3) constitutionality of K.S.A. 2016 Supp. 60-3107(e)(1)

HELD: The PFA has already expired, meaning that Stacy cannot receive relief from the appellate court. But this issue is capable of repetition, and the issue is one of public importance. Because of that, the appeal is not moot. It is undisputed that the motion to extend the PFA was not served on Stacy or his attorney. The content of the motion did not provide any clue as to why Kerry believed extension of the PFA was necessary. Because the PFA was entered without any notice to Stacy it violated his due process rights. That order was vacated. K.S.A. 2016 Supp. 60-3107(e)(1) was not void for vagueness. The district court's grant of the PFA extension without exercising any discretion at all was an abuse.

STATUTES: K.S.A. 2016 Supp. 59-3073(a)(7), 60-205(a)(1)(D), -205(b)(1), -205(b)(2)(C), -206(b), -206(c), -207(b), -3104(a), -3104(d), -3105(a), -31a05(b), -3106(a), -3106(b), -3107(e); K.S.A. 53-601

Tags:  Harvey  Wyandotte 

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December 22 and 29, 2017 Digests

Posted By Administration, Tuesday, January 2, 2018

Kansas Supreme Court

Attorney Discipline

No. 12,264—DECEMBER 15, 2017

FACTS: In a letter dated December 6, 2017, Luke B. Harkins, an attorney licensed to practice law in Kansas, voluntarily surrendered his license. At the time of surrender, a complaint was pending against Harkins which alleged multiple violations of the Kansas Rules of Professional Conduct.

HELD: The court found that Harkins' surrender of his license should be accepted, and Harkins was disbarred.

No. 116,542—DECEMBER 29, 2017

FACTS: A hearing panel found that Hodge violated KRPC 1.7 (concurrent conflict of interest), 1.8(a) (conflict of interest arising from entering business transaction with client), 1.8(b) (using information to the client's disadvantage), 4.2 (communication with person represented by counsel), and 8.4(g) (engaging in conduct adversely reflecting on a lawyer's fitness to practice). The violations arose after Hodge became embroiled in a business transaction involving clients.

HEARING PANEL: The panel found that Hodge continued to provide legal advice to his client even after he ostensibly withdrew from representation and even though Hodge testified that he was operating as a business person and not as an attorney. And while he was acting as an attorney, Hodge used knowledge he gained in his representative capacity to attempt to enrich his solely-owned business. After finding that Hodge behaved in a deceptive manner and refused to acknowledge his wrongdoing, the hearing panel agreed with the disciplinary administrator and recommended that Hodge be disbarred.

HELD: Hodge disputed many of the findings of fact from the hearing panel. After reviewing the parties' arguments, the court agreed with the hearing panel that Hodge was acting as an attorney during the period in question. Hodge's simultaneous representation violated the rules of professional conduct. After affirming the hearing panel's findings regarding Hodge's rules violations, the court considered that Hodge's behavior was motivated by self-dealing. The court found that any mitigating factors failed to outweigh the aggravating factors and imposed discipline of disbarment.


NO. 112,911—DECEMBER 29, 2017

FACTS: The State billed Boot Hill Casino & Resort for compensating use tax for tax years 2009 through 2011. The tax was based on the sale price for electronic gaming machines (EGM) that were on the casino floor at the casino in Dodge City. Under Kansas statutes, BHCMC owns all ancillary facilities at the resortamenities such as the restaurant. The State, through the Kansas Lottery, owns all of the lottery gaming facilities and operations. BHCMC operates all of the resort through a management agreement. This arrangement is required by both statute and the Kansas Constitution. Because the Kansas Lottery, and not BHCMC, is the actual owner of the EGM that were subject to taxation, BHCMC filed a motion for refund with the Kansas Department of Revenue. That request was denied, and BHCMC appealed to BOTA, which determined that BHCMC was not required to pay the use tax because it did not make use "incident to ownership" of the EGM. That decision was affirmed by the Court of Appeals, and the Supreme Court accepted the State's petition for review.

ISSUE: Whether BHCMC is subject to compensating use tax

HELD: Compensating use tax is tied to the use, storage, or consumption of property. For a person to exercise a right or power over property incident to the ownership of that property, the person exercising that right or power must own the property. In this case, the statutory language is ambiguous. Any statutory ambiguity must be resolved in favor of the taxpayer. Under the management agreement, BHCMC does not own the EGM and does not use them within the meaning of the statute. And because BHCMC does not own the EGM, it cannot be made to pay a compensating use tax.

STATUTES: Kansas Constitution, article 15, § 3; K.S.A. 2016 Supp. 74-8733, 77-621(c), 79-3702(c), -3703; K.S.A. 2015 Supp. 74-2426(c); K.S.A. 2007 Supp. 74-8734(h)(17); K.S.A. 79-3703a


Kansas Court of Appeals


No. 115,620—DECEMBER 22, 2017

FACTS: Drs. Kloster and Hancock are physicians specializing in pain management. They worked closely together in their practice, Rockhill Pain Specialists, and also had a close personal relationship. For reasons that are unclear, both the business and personal relationships deteriorated beginning in 2011. Around this time, Hancock developed concerns over the quality of Kloster's patient care. Without telling Kloster, Hancock hired two outside physicians to review certain aspects of Kloster's patient care. These physicians were concerned with what they found and filed complaints with the Kansas Board of Healing Arts and the Missouri Board of Registration for the Healing Arts. Upon Hancock's urging, the reviewing physicians also contacted the attorneys general for Kansas and Missouri and the Drug Enforcement Administration. Hancock also called the local police department. Amid a dissolution of the practice, Kloster filed suit against Hancock for, among other things, fraud, breach of fiduciary duty, and defamation. Hancock responded by taking his concerns about Kloster to the press. Ultimately, Kloster was cleared by all licensing agencies. And a jury found in Kloster's favor on all charges. Hancock appealed.

ISSUES: (1) Admissibility of administrative records; (2) error in denying discovery request; (3) proof of damages; (4) applicability of statutory cap; (5) delineation between Kloster and Rockhill

HELD: K.S.A. 65-4925 does not prohibit testimony about the ultimate outcome of an administrative investigation. There is no public policy prohibition on this testimony. And Hancock's testimony regarding the administrative actions rendered harmless any error in admission of evidence. The district court erred by prohibiting Hancock from discovering Kloster's responses to the peer review committees at the Board of Healing Arts. Kloster's responses were not privileged and, even if they were, he did not own the privilege. But the error in excluding this evidence from discovery was harmless. Kloster's damages were proved by sufficient evidence of actual damages. Defamation is not a personal injury action, so the statutory $250,000 cap does not apply. The damages awarded to Kloster personally were supported by the evidence.

STATUTES: K.S.A. 2016 Supp. 60-226(c)(1)(D), 261, -19a02, 65-4915, -4915(b); K.S.A. 60-401(b), -407, -407(f), -409, -412(c), 65-2839a, -2898, -2898(a), -4923, -4924, -4925, -4925(a)(3)

No. 112,243—DECEMBER 29, 2017

FACTS: After a concerned neighbor called the police, law enforcement made contact with Fischer, who was sitting in a parked car. The officer could smell alcohol and noticed that Fischer, who was under age 21, had bloodshot eyes. Fischer consented to a preliminary breath test which showed a breath alcohol content over .02. An administrative law judge ruled that the officer had reasonable grounds to request the PBT and suspended Fischer's driver's license. That ruling was upheld by the district court, and Fischer appealed.

ISSUES: (1) Constitutionality of only requiring reasonable suspicion; (2) constitutionality of coercing a driver's consent to PBT

HELD: Because Fischer was under age 21, the statute required the officer to certify that he had reasonable grounds to believe that Fischer was operating a vehicle while having alcohol in his system. There was probable cause that Fischer was under the influence which means that Fischer's first constitutional argumentabout the reasonableness of allowing only reasonable suspicionneed not be addressed. Any error in requiring the PBT was harmless because this is a civil administrative proceeding, not a criminal action, and the exclusionary rule did not apply.

STATUTE: K.S.A. 2016 Supp. 8-1012, -1012(a), -1012(b), -1567a(a), -1567a(d)(1)(A)

No. 116,607—DECEMBER 29, 2017

FACTS: The properties at issue in this case are four Target stores located in Sedgwick County. All four stores sought equalization appeals for tax year 2015. During that appeal, the county provided testimony from a mass appraisal expert. Her testimony regarding valuation was predicated on computer models and 2013 settlement values. Target provided testimony from an expert appraiser who inspected the buildings and researched comparable land and sales. After finding Target's evidence more compelling than the county's, BOTA decreased the buildings' valuations and the county appealed.

ISSUE: The validity of BOTA's decision

HELD: Because the property at issue is commercial property, the county had the burden of production and persuasion before BOTA. The county's valuations were not based on actual views and inspections of the buildings. Moreover, the carryover data relied on by the county has been deemed unconstitutional, a decision that had been made at the time of the BOTA hearing. Because she did not personally appraise the subject properties, the county's expert could not offer a valid opinion of value. Conversely, Target's expert's appraisal was appropriate and complied with Kansas law. BOTA's decision was reasonable.

STATUTES: K.S.A. 2016 Supp. 74-2426(a), -2426(c), 77-603(a), -621(a), -621(c), -621(d), 79-501, -503a, -505, -506(a), -1609; K.S.A. 79-501, -1455


constiutional law—criminal procedure—fourth amendment—search and seizure
state v. hadley
sedgwick district court—affirmed
No. 115,428—December 22, 2017

FACTS: Hadley was convicted of possession of marijuana after a prior conviction. The marijuana was discovered in Hadley’s undergarment during a law enforcement search subsequent to a traffic stop. Hadley argued the warrantless search based on the odor of marijuana lacked probable cause in violation of her Fourth Amendment rights. On appeal, she claimed the district court erred in denying her motion to suppress this evidence.

ISSUE: Warrantless search based on probable cause with exigent circumstances

HELD: Court examined what constitutes probable cause when a person is searched without a warrant based, in whole or in part, on the odor of marijuana. Approach taken by other states, allowing search of a person based on odor of marijuana alone, is not adopted. State v. Fewell, 286 Kan. 370 (2008), is discussed and applied. Under totality of circumstances in this case, no error in district court’s ruling that the warrantless search of Hadley was based on probable cause with exigent circumstances.

STATUTES: K.S.A. 2013 Supp. 21-5706(b)(3), -5706(c)(2)(B); K.S.A. 8-125

constitutional law—crimes and punishment—sentencing—statutes
state v. robinson
johnson district court—reversed in part, vacated in part, remanded
No. 116,872—December 22, 2017

FACTS: Robinson was convicted in part of refusal to submit to testing in violation of K.S.A. 2016 Supp. 8-1025, and refusal to submit to a preliminary breath test (PBT) in violation of K.S.A. 2016 Supp. 8-1012. On appeal, he claimed these convictions were based on unconstitutional statutes. He also challenged the use of his prior Arizona and California DUI convictions to sentence him as a fourth or subsequent DUI offender.

ISSUES: (1) Refusal to submit to testing in violation of K.S.A. 2016 Supp. 8-1025, (2) refusal to submit to PBT in violation of K.S.A. 2016 Supp. 8-1012, (3) out-of-state DUI convictions

HELD: State concedes that Robinson’s conviction for refusal to submit to testing in violation of K.S.A. 2016 Supp. 8-1025 must be reversed pursuant to State v. Ryce, 303 Kan. 899 (2016) (Ryce I), aff’d on reh’g, 306 Kan. 682 (2017)(Ryce II). 

As issue of first impression, K.S.A. 2016 Supp. 8-1012 is unconstitutional for same reasons that K.S.A. 2016 Supp. 8-1025 was found to be unconstitutional in Ryce I and Ryce II, i.e., the statute criminalizes a person’s right to withdraw consent to a warrantless search, and the statute is not narrowly tailored to serve a compelling state interest. This conviction and sentence was reversed. Whether any evidence must be suppressed following a driver’s arrest that is based in part on the use of a PBT is not addressed.

State conceded that Robinson’s Arizona DUI convictions were based on a statute having no comparable offense in Kansas, thus cannot be used to enhance Robinson’s DUI sentence. Parties agreed that the case should be remanded for district court to determine whether the prior California DUI convictions can be used to enhance Robinson’s sentence under the Kansas DUI statute. 

STATUTES: K.S.A. 2016 Supp. 8-1001, -1001(a), -1012, -1012(a), -1012(b), -1012(c), -1012(d), -1025, 21-5102; K.S.A. 2014 Supp. 8-1025; K.S.A. 22-3504(1)

criminal procedure—jury instructions—statutes
state v. white
finney district court—reversed and remanded
No. 116,048—december 22, 2017

FACTS: Officers discovered children who were locked in a smelly unsafe room by mother when she went to bed, then released by father (White) 12-14 hours later when he woke up. White was charged with aggravated endangerment of a child. Over defense and State objections, district court instructed jury on the affirmative defense of parental discipline, citing “static force” of locking children in room to protect them from danger. White was convicted and appealed, claiming insufficient evidence supported the conviction, and claiming the parental defense instruction was error which denied him the right to control the theory of his own defense. 

ISSUES: (1) Sufficiency of the evidence, (2) jury instruction

HELD: A close call, but facts viewed in light most favorable to the State were sufficient to support the conviction.

The parental discipline instruction, which discusses use of reasonable amount of “force” upon a child was not factually appropriate where there was no evidence presented of corporal punishment and the mother locked the children in the room, nor was the instruction legally appropriate. District court’s decision to add this instruction denied White a meaningful opportunity to present his chosen theory of defense, and State failed to show that this affirmative defense instruction given over White’s objection did not affect outcome of the trial. Conviction was reversed and remanded for a new trial. 

STATUTE: K.S.A. 2016 Supp. 21-5601(b)(1)

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December 15, 2017 Digests

Posted By Administration, Monday, December 18, 2017

Kansas Supreme Court


constitutional law—criminal procedures—statutes
state v. amos
wyandotte district court—affirmed
No. 115,925—december 15, 2017

FACTS: Amos’ 1999 convictions of first-degree murder and conspiracy to commit aggravated robbery were affirmed on direct appeal. In 2015, he filed a motion to correct an illegal sentence, seeking relief under 2014 Kansas decisions and under 2013 legislation (now codified at K.S.A. 2016 Supp. 21-6620) enacted in response to Alleyne v. United States, 570 U.S. 99 (2013), to require jury findings before an enhanced mandatory minimum sentence can be imposed for first-degree murder. District court summarily denied the motion. Amos appealed, arguing for the first time that K.S.A. 2016 Supp. 21-6620(f), which makes the 2013 amendment inapplicable to sentences that were final before June 17, 2013, violates the Equal Protection Clause.

ISSUE: Motion to correct illegal sentence

HELD: A claim that a sentence is illegal because it violates the constitution cannot be brought via K.S.A. 22-3504(1). Nor can a K.S.A. 22-3504(1) motion to correct an illegal sentence serve as the procedural vehicle for attacking the constitutionality of K.S.A. 2016 Supp. 21-6620(f). Impact of 2017 amendment of K.S.A. 22-3504 is not considered in this case.

STATUTES: K.S.A. 2016 Supp. 21-6620, -6620(f); K.S.A. 22-3504(1)


constitutional law—criminal procedure—sentencing
state v. campbell
sedgwick district court—affirmed
No. 114,814—december 15, 2017

FACTS: Campbell was convicted in 1996 of first-degree murder and multiple crimes. In calculating criminal history for application of the Kansas Sentencing Guidelines Act (KSGA), district court classified several of Campbell’s out-of-state convictions as person felonies. In 2015, Campbell filed motion to correct an illegal sentence, citing State v. Murdock, 299 Kan. 312 (2014). District court summarily denied relief, refusing to apply Murdock retroactively. Murdock was later overruled by State v. Keel, 302 Kan. 560 (2015). Campbell appealed claiming: (1) his sentence was illegal under Murdock; (2) application of Keel to Campbell’s motion violated the Ex Post Facto Clause; (3) KSGA’s person/nonperson classification of pre-KSGA offenses violates the Sixth Amendment; and (4) summary denial of his motion denied him his right under K.S.A. 22-3504(1) to a hearing. Appeal transferred to the Kansas Supreme Court.

ISSUES: (1) Classification of out-of-state convictions, (2) Ex Post Facto Clause, (3) Sixth Amendment, (4) summary denial

HELD: Campbell was not entitled to have his out-of-state convictions classified as nonperson offenses under Murdock which was overruled by Keel, and is not entitled to relief under holding in Keel. Impact of 2017 amendment of K.S.A. 22-3504 is not addressed.

Application of Keel in this case does not violate the Ex Post Facto Clause. The 1993 statutes interpreted in Keel were in effect when Campbell committed crimes in 1996. They are not laws that increased the potential punishment after Campbell’s crimes were committed.

Holding in State v. Collier, 306 Kan. 521 (2017), defeats Campbell’s Sixth Amendment claim.

Campbell mistakenly relies on 2017 amendment to K.S.A. 22-3504 which was not effective until after Campbell’s hearing. Under law that applied at the time of Campbell’s hearing, he had no right to be present for the court’s preliminary review or to demand a hearing at which he could be present.

STATUTES:  K.S.A. 2016 Supp. 21-6810(d), -6810(e), 22-3601(b)(3); K.S.A. 1993 Supp. 21-4710; K.S.A. 21-4711, 22-3504, -3504(1)


criminal procedure—juries—prosecutors—sentencing
state v. hilt
johnson district court—affirmed
No. 114,682—december 15, 2017

FACTS: Hilt was convicted of first-degree murder. Conviction affirmed, but hard-50 sentence vacated and remanded for resentencing in accord with Alleyne v. United States, 570 U.S. 99 (2013). On remand, district court replaced a juror who had consulted a high school yearbook in violation of the court’s repeated admonitions, and was not forthright when questioned. District court imposed hard-50 sentence pursuant to jury’s verdict. Hilt appealed claiming: (1) district court’s removal of the juror during deliberation was error because the juror was not doing internet research on the case, and the juror’s failure to be forthright was not a proper basis for dismissal; (2) prosector erred during closing argument by telling jury that its role was to determine whether Hilt would get hard 50 sentence or be eligible for parole in 25 years, and telling jury it did not have to determine which blows to the victim were inflicted by Hilt and which were inflicted by co-defendants; and (3) the district court’s pronouncement of sentence was illegal and violated his right to be present at sentencing

ISSUES: (1) Removal of juror, (2) prosecutorial error, (3) pronouncement of sentence

HELD: No abuse of district court’s discretion to remove and replace a juror. Under facts in case, juror who consulted the yearbook violated the judge’s admonitions to do no investigation of any matter outside the courtroom. Judge’s express skepticism of the juror’s honesty was not an independent basis for removal and replacement.

Statutory subsections governing Hilt’s crime made a hard-50 sentence mandatory once a jury found beyond a reasonable doubt that an aggravating circumstance existed that was not outweighed by any applicable mitigating circumstances. District judge had no discretion to deviate from the jury’s hard-50 verdict, and prosecutor did not misstate the law. Nor did prosecutor misstate the law by telling jurors they could vote for hard-50 sentence even if State did not prove which co-defendant inflicted specific blows or wounds.

District judge’s statements in open court, that appropriateness of imposing the hard-50 sentence was the jury’s decision which the court was going to follow and impose, did not create an illegal ambiguity in the length of Hilt’s sentence or violate his right to be present at sentencing.

STATUTES: K.S.A. 2016 Supp. 21-6620(c), -6620(d), -6620(e), -6620(e)(1), -6620(e)(5), -6623, -6624(f), -6625, -6625(a), -6625(a)(4), 22-3405, -3412(c); K.S.A. 2013 Supp. 21-6620, -6624;  K.S.A. 22-3424, -3504(3)


crimes and punishment—criminal procedure—juries—sentencing
state v. ruiz-ascencio
lyon district court—convictions affirmed—sentence vacated in part— remanded
No. 115,343—december 15, 2017

FACTS: Ruiz-Ascencio was convicted of attempted first-degree murder, first-degree murder, aggravated assault, and illegal use of a communication facility. District court imposed hard-25 sentence for first-degree murder, prison terms for the other three offenses, and lifetime post-release supervision on all four counts. Ruiz-Ascencio appealed claiming the district court: (1) erred by not instructing jury on voluntary manslaughter for the first-degree murder and attempted first-degree murder charges because both victims were shot during a sudden quarrel; and (2) imposed an illegal sentence by ordering lifetime post-release supervision on each count.

ISSUES: (1) Jury instructions, (2) sentencing

HELD: Kansas cases are reviewed. Under facts in this case, a voluntary manslaughter instruction was not factually appropriate. No facts or reasonable inferences that can be drawn therefrom to suggest a sudden quarrel, or that Ruiz-Ascencio otherwise acted in a heat of passion. One victim’s words or gestures were not enough to constitute legally sufficient provocation.

State concedes error in sentencing. Judgment imposing lifetime post-release supervision on all four counts is vacated as contrary to K.S.A. 2016 Supp. 22-3717. Remanded for resentencing.   

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

STATUTES: K.S.A. 2016 Supp. 21-5404(1), 22-3717, -3717(b)(2)(C), -3717(d)(1)(A), -3717(d)(1)(C); K.S.A. 21-5404, 22-3504

Kansas Court of Appeals


NO. 116,578—DECEMBER 15, 2017

FACTS: Triple D Auto Parts purchased its store in 1990. At that time, the building's exterior had not changed since its construction in 1925. One feature of the exterior was a step down from the entrance/exit door to the sidewalk. Bonnette, who was a regular customer, fell when leaving the store and badly broke her wrist. Although she had navigated the step on dozens of occasions, she alleged that she fell because she could not see the step. Bonnette filed suit against Triple D, claiming negligence. Triple D responded by claiming that it was protected by the statute of repose. The district court granted Triple D's motion for summary judgment on those grounds, and this appeal followed.

ISSUES: (1) Applicability of the statute of repose; (2) duty to warn

HELD: The facts show that Triple D failed to warn Bonnette about the dangerous step. Because the duty to warn is an ongoing duty, that duty was breached on the day Bonnette was injured. This ongoing duty prevents application of the statute of repose.  But, Bonnette had actual knowledge of the step, and the danger was open and obvious. There is no evidence that Bonnette was distracted when leaving the store. Because Triple D did not have a duty to warn it is entitled to judgment as a matter of law.

STATUTES: K.S.A. 60-513, -513(b)

Tags:  constitutional law  criminal procedure  Hamilton  juries  limitations of actions  Lyon  procedures  prosecutors  Sedgwick  sentencing  statutes  torts  Wyandotte 

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December 8, 2017 Digests

Posted By Administration, Monday, December 11, 2017

Kansas Supreme Court


criminal procedure
state v. beck
sedgwick district court—affirmed
115,219—december 8, 2017

FACTS: Beck was convicted on guilty pleas pursuant to plea agreement recommending concurrent sentences. District court accepted the pleas, imposed a hard-25 sentence for the first-degree murder conviction and a downward departure sentence for the attempted first-degree murder conviction, and ordered the sentences to be served consecutively. Beck appealed, arguing the district court erred by refusing to follow the plea agreement’s recommendation for concurrent sentences.   

ISSUE: Sentencing—plea agreement

HELD: No abuse of sentencing court’s discretion. Sentence recommendations made pursuant to a plea agreement are not binding on a sentencing court. 

STATUTES: K.S.A. 2016 Supp. 22-3601(b)(3); K.S.A. 2013 Supp. 21-5301(c)(1), -6804


Kansas Court of Appeals


NO. 117,584—DECEMBER 8, 2017

FACTS: Hummon Corporation leased a saltwater disposal well. The Trust owned a two-thirds interest in the land on which the well was located. In 2015, Trust administrators sued Hummon alleging that it failed to pay for its use of the well after the lease expired. Hummon admitted that it owed some compensation to the Trust for using the well beyond the lease term, but it disputed the amount requested by the Trust. All parties agreed to mediation. That process produced a mediation agreement which required Hummon to pay $42,500 and to remove certain equipment from the site. In exchange, the Trust agreed to assign to Hummon any interest owned in a steel pipeline and to assign Hummon an easement for pipeline access. A dispute arose over the extent of that easement. After the Trust filed suit to enforce the mediation agreement, the district court agreed that the mediation agreement was specific and enforceable. Hummon appealed.

ISSUES: (1) Adequacy of consideration; (2) existence of condition precedent; (3) validity of mediation agreement; (4) reasonableness of mediation agreement

HELD: The text of the mediation agreement shows sufficient consideration. The record shows that Hummon did not raise the issue of a condition precedent before the district court. For that reason, and in the absence of any compelling reason for the court to consider the issue, the panel declines to address the merits of Hummon's complaint about the performance of a condition precedent. The mediation agreement was not so vague or indefinite to be unenforceable. The district court's interpretation of the mediation agreement was consistent with its plain language.

STATUTES: No statutes cited.


appeals—constitutional law—criminal procedure—statutes
state v. dawson
sedgwick district court—affirmed
116,530—december 8, 2017

FACTS: Dawson convicted in 1997 of rape. After unsuccessful challenges to conversion of his misdemeanor convictions to calculate criminal history, the convictions and sentence became final in March 2000. After State v. Dickey, 301 Kan. 1018 (2015), Dawson filed motion to correct an illegal sentence. District court summarily denied the motion, stating Apprendi and Dickey did not apply retroactively to a final sentence. Dawson appealed, arguing an incorrect criminal history classification can be challenged at any time. At panel’s request, parties addressed impact of 2017 amendment to K.S.A. 22-3504 which became effective after briefs had been filed.

ISSUES: (1) 2017 Amendment to K.S.A. 22-3504, (2) criminal history calculation

HELD: Dickey and subsequent cases were discussed. K.S.A. 22-3504(3), as amended in 2017, clarified the intended application of the term “illegal sentence” used in K.S.A. 22-3504(1). The amendment is procedural in nature and applies retroactively. A sentence is not an illegal sentence based on holding in Dickey if that sentence was final prior to Apprendi. Dawson’s sentence was legal when pronounced, and was not rendered illegal by the subsequent change in the law. District court’s summary denial of the motion to correct an illegal sentence was not error.

Any right to appellate review of claim concerning the conversion of Dawson’s misdemeanor convictions has been exhausted and is barred by res judicata.

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

Tags:  Barber District  Sedgwick District 

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December 5, 2017 Digests

Posted By Administration, Tuesday, December 5, 2017

Kansas Supreme Court

Attorney Discipline

NO. 116,943 – DECEMBER 1, 2017

FACTS: This disciplinary matter arose after Najim was caught offering to provide legal services to an undercover agent engaged in a conspiracy to commit wire fraud and contraband cigarette trafficking. Najim's retainer was paid in cash, and Najim did not notify his law firm about the payment in excess of $10,000 cash so that it could report the payment to the Financial Crimes Enforcement Network. The failure to report is a Class D federal felony, and after a conviction a hearing panel determined that Najim violated Rule 8.4(b) (commission of a criminal act reflecting adversely on the lawyer's honesty).

HEARING PANEL: Najim pled guilty to one of the 44 counts that were filed against him in federal court. But after the disciplinary administrator filed its complaint, Najim denied that his conduct violated Rule 8.4(b). The disciplinary administrator asked that Najim's license be suspended indefinitely, retroactive to a temporary suspension that was entered after criminal charged were first filed. Najim thought that a 2-year suspension was appropriate, retroactive to May 2015. A majority of the hearing panel ultimately recommended that Najim be suspended for three years, with suspension running from the date of the Supreme Court's opinion.

HELD: Although Najim disputes the idea that he committed a crime, the record of criminal judgment was admitted into evidence during the disciplinary hearing. That judgment is conclusive evidence that a crime was committed. And the crime of which Najim was convicted was one of dishonesty. The evidence before the court warrants an indefinite suspension from the practice of law.

NO. 117,395 – DECEMBER 1, 2017

FACTS: A hearing panel found that Brandy L. Sutton violated KRPC 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). The complaint arose after a former employee accused Sutton of failing to make promised contributions to that employee's individual retirement account. A review by the employee revealed a shortfall of almost $9,000. Sutton disputed the amount but acknowledged there were some shortfalls which were caused by the law firm's financial distress. And, Sutton claimed, that distress was caused by the employee's negligence.

HEARING PANEL: After being notified of these issues, Sutton made whole not only the complaining employee but also other employees whose IRAs were not properly funded. The disciplinary administrator asked that Sutton be indefinitely suspended, although he acknowledged that a shorter term might be appropriate. Sutton asked that she be allowed to continue practicing law, subject to a probation plan. The hearing panel agreed with Sutton that probation was a good option for Sutton.

HELD: The hearing panel's findings were adopted. The court found that Sutton's behavior was, essentially, conversion, and that conversion historically warrants a more severe sanction than probation. Accordingly, a majority of the court elected to impose a three-year suspension, subject to lifting the suspension after six months upon application. A minority of the court would have approved the probationary plan suggested by the hearing panel.



NO. 111,590 – DECEMBER 1, 2017

FACTS: Thomas was driving a pick-up truck when he ran over McElhaney's feet in a school parking lot. It is undisputed that Thomas was driving, but there was no agreement about his state of mind at the time. Thomas claimed it was purely an accident. McElhaney testified that Thomas told her that he just meant to "bump" her with the truck. McElhaney brought claims for both negligence and intentional tort theories. She later asked to amend her petition to include a claim for punitive damages, but that request was denied. The district court also dismissed her intentional tort claim, finding there was no evidence of an intent to injure. The Court of Appeals agreed with this assessment. And a majority of the panel upheld the district court's ruling disallowing a claim for punitive damages. This appeal followed after McElhaney's petition for review was granted.

ISSUE: Standard for proving tort of civil battery

HELD: An intent to injure is a necessary element of the tort of battery in Kansas. This includes both the intent to do actual harm and the intent to cause an offensive contact. A person may be guilty of civil battery if the defendant intends to make an offensive contact and bodily harm results. In so ruling, the court does away with the concept of "horseplay" as a legal category. And because McElhaney should have been allowed to bring her battery claim, the district court also erred by not permitting McElhaney to amend her petition and claim punitive damages.

STATUTE: K.S.A. 60-3703


constitutional law – criminal procedure – sentencing – statutes
state v. simmons
saline district court – affirmed; court of appeals – affirmed
No. 108,885 – december 1, 2017

FACTS: Simmons convicted of drug offense in 2005. Prior to her release on parole, Kansas Offender Registration Act (KORA) was amended to require registration of drug offenders. When Simmons was charged with failing to register, district court found her guilty and ordered payment of $200 DNA database fee. On appeal Simmons claimed: (1) the retroactive application of the KORA registration requirement violated the Ex Post Facto Clause; (2) it was error to impose the DNA database fee because she would have provided a DNA sample before her release on parole; and (3) even if the KORA registration was not punishment, it was part of her 2005 sentence which could not be modified by the executive branch. Court of Appeals affirmed. 50 Kan.App.2d 448 (2014). Simmons’ petition for review granted.

ISSUES: (1) Ex Post Facto Challenge, (2) Modification of Sentence, (3) DNA Database Fee

HELD: Under State v. Petersen–Beard, 304 Kan. 192 (2016), lifetime sex offender registration does not constitute “punishment” for Eighth Amendment and ex post facto challenges. Record in this appeal is insufficient to demonstrate that drug offenders as a class are distinguishable from the class of sex offenders such that KORA registration becomes punitive rather than civil when applied to drug offenders.

Challenge to authority of executive branch to order Simmons to register is issue of first impression. Simmons’ 2005 criminal sentence is not illegal, and has not been “modified” by the post–sentencing registration obligation.

District court did not err by imposing the DNA database fee required by K.S.A. 2012 Supp. 75–724. Simmons failed to show that she previously paid a DNA database fee or that she did not submit a DNA sample for the current offense.

DISSENT (Beier, J., joined by Rosen and Johnson, JJ.): Consistent with dissent in Petersen–Beard, Kansas offender registration requirement is punishment for sex or violent offender, and no less so for drug offender. Simmons met burden of showing an ex post facto violation in this case.

STATUTES: K.S.A. 2012 Supp. 75–724, –724(a)–(b); K.S.A. 22–4901 et seq.


appeals – criminal procedure – juries
state v. mcbride
shawnee district court – reversed
court of appeals – reversed
No. 112,277 – december 1, 2017

FACTS: McBride convicted of kidnapping. On appeal he claimed he was denied a fair trial because prosecutor asserted the alleged victim deserved consideration similar to the presumption of innocence constitutionally recognized for criminal defendants. In unpublished opinion, Court of Appeals agreed that this was prosecutorial error but found the error was harmless under State v. Tosh, 278 Kan. 83 (2004). Review granted on this issue.

ISSUE: Prosecutorial Error – Harmless Error

HELD: No cross–petition of panel’s determination that the prosecutor misstated the law, so only issue on appeal is whether this prosecutorial error was harmless. Harmless error inquiry in Tosh was abandoned in State v. Sherman, 305 Kan. 88 (2016). Applying Sherman to facts in this case, where prosecutor improperly tried to bolster victim’s credibility by claiming she deserved a credibility presumption akin to McBride’s presumption of innocence, denied McBride a fair trial. Kidnapping conviction is reversed and case is remanded to district court.

STATUTES: K.S.A. 2016 Supp. 21–5408(a)(3); K.S.A. 20–3018(b), 60–261, –2101(b)


criminal procedure – habeas corpus – sentencing
state v. buford
wyandotte district court – affirmed
No. 114,175 – december 1, 2017

FACTS: Buford is serving a life sentence imposed for 1990 felony murder conviction. e filed 2014 motion to correct an illegal sentence, arguing the parole board instituted a new sentence each time it denied him parole, and these “sentences” were illegal because the parole board should have classified his pre–1993 crime as a nonperson felony. District court summarily denied the motion. Buford appealed.

ISSUE: Motion to Correct Illegal Sentence

HELD: The denial of parole is not a sentence, so K.S.A. 22–3504 has no application. Claim is not construed as habeas motion because it is not clear Buford has exhausted administrative remedies.

STATUTES: K.S.A. 22–3504, 60–1501; K.S.A. 21–5401(a), 22–3717(b) (Ensley 1988)

Tags:  appeals  Attorney Discipline  constitutional law  criminal procedure  habeas corpus  juries  negligence  Saline District  sentencing  statutes  torts 

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November 22, 2017 Digest

Posted By Administration, Tuesday, November 28, 2017
Updated: Monday, November 27, 2017

Kansas Court of Appeals


NO. 116,803—NOVEMBER 22, 2017

FACTS: Fowler pled guilty to felony domestic battery, felony possession of methamphetamine, and misdemeanor violation of a protective order. The domestic battery offense was charged as a felony because he had been convicted of domestic battery twice within the past five years. The anticipated presumptive probation for the primary crime of possession of methamphetamine, however, was altered to presumptive prison when the presentence investigation report calculated Fowler’s criminal history by aggregating six prior misdemeanors to two person felonies. To follow spirit of the plea agreement, State joined Fowler’s request for a dispositional departure to probation. District court denied the motion and imposed sentence which included prison term for the primary crime of felony possession of methamphetamine. Fowler appealed, arguing for first time the sentence was illegal because the sentencing court, in violation of K.S.A. 2015 Supp. 21-6810(d)(9) of the Kansas Sentencing Guidelines Act (KSGA), “double counted” two of Fowler’s prior person misdemeanor convictions both to enhance the domestic battery conviction from a misdemeanor to a felony and to elevate Fowler’s criminal history.

ISSUE: Sentencing - use of prior misdemeanor domestic battery convictions

HELD: Reasoning in State v. Vontress,  266 Kan. 248 (1998), reaffirmed in State v. Davis, 275 Kan. 107 (2003), was discussed and applied. Fowler was properly charged with felony domestic battery, a non-grid felony. The KSGA sentencing grid is inapplicable to this crime because the crime has its own sentencing scheme with no severity level designation. Felony domestic battery thus cannot be designated as the primary crime for the purpose of applying a criminal history score to calculate a sentence. District court properly designated Fowler’s methamphetamine conviction as the primary crime of conviction for purpose of calculating Fowler’s base sentence, and correctly calculated Fowler’s criminal history score because Fowler’s two prior domestic battery convictions were not used to elevate the classification of the primary crime. 

DISSENT (Malone, J.): Use of Fowler’s two prior domestic battery convictions to calculate his criminal history and to elevate the domestic battery conviction from a misdemeanor to a felony violates the plan language of K.S.A. 2015 Supp. 21-6819(d)(9). Vontress is distinguishable from Fowler’s case. Would vacate Fowler’s sentence and remand for resentencing.  

STATUTES: K.S.A. 2015 Supp. 5414, -5414(a), -5414(b), -5414(b)(3), -6803(d), -6804(a), -6804(c), -6804(i)(1), -6804(i)(3), -6805(a), -6806(c), -6806(d), -6809, -6810, -6810(d)(9), -6811, -6811(a), -6819(b), -6819(b)(2), -6819(b)(3), -6819(b)(5); K.S.A. 21-4710, -4710(d)(11), -4720, 22-3504(1)

Tags:  crimes and punishment  Dissent  Sedgwick  Sedgwick District  sentences  statutes 

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