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April 6, 2018 Digests

Posted By Administration, Tuesday, April 10, 2018

Kansas Supreme Court

Judicial Qualification

NO. 118,527—APRIL 6, 2018

FACTS: The Kansas Commission on Judicial Qualifications received complaints regarding Judge Trigg and docketed a notice of formal proceedings. Judge Trigg did not file an answer and did not attend the hearing. At the hearing, the panel determined that Judge Trigg violated judicial canons that require independence, integrity, and impartiality of the judiciary.

DISCUSSION: Judge Trigg is no longer on the bench. But because the conduct occurred while she was still a judge, the court still has jurisdiction to review it. The court concluded that Judge Trigg violated multiple rules on Canons 1 and 2 of the Kansas Code of Judicial Conduct. Because Judge Trigg is no longer on the bench, there is no need to discuss the appropriate sanction. But the court concludes that the misconduct undermined the public's faith in the judiciary.


NO. 114,890—APRIL 6, 2018

FACTS: Daniel Rose was killed in a traffic accident while acting in the course of his employment. He was survived by his wife, Pamela, and son, Lucas. Pamela filed a wrongful death action in state court and Lucas, who did not live in Kansas, filed suit in federal court. Pamela also received workers compensation benefits, which were subject to subrogation rights and a lien against any third-party recovery. The federal action was settled, with each party receiving a lump-sum payment. There was no categorization of damages in the federal settlement. After that settlement, Pamela filed a motion in the state case in which she argued that her federal recovery was for loss of consortium and loss of spousal services—recovery that would be exempt from the workers compensation subrogation and lien. The district court granted a motion to dismiss Pamela's action, finding that the federal settlement did not allow for the kind of action Pamela sought in state court because it was barred by the one-action rule. The Court of Appeals affirmed that ruling, and the petition for review was granted.

ISSUE: (1) Ability of a court to categorize damages

HELD: The Kansas Workers Compensation Act prevents a windfall for a deceased worker's dependents by allowing for subrogation for payments received other than for loss of consortium or loss of spousal services. In addition, Kansas law only allows one action for the wrongful death of one person. Once the federal case was settled, the Kansas case was properly dismissed.

STATUTES: K.S.A. 2016 Supp. 44-510b, 60-1901(a); K.S.A. 44-504, -504(b), 60-1902


appeals—constitutional law—criminal law—evidence—prosecutors
state v. chandler
shawnee district court—reversed and remanded
no. 108,625—April 6, 2018

FACTS: Chandler convicted of the 2002 premeditated murders of her ex-husband (Sisco) and his girlfriend. Chandler appealed, raising in part multiple claims of prosecutorial error, and challenging the sufficiency of the evidence linking her to the murders. During the appeal, Kansas Supreme Court granted Chandler’s unopposed motion for new counsel, allowed supplemental briefing, and heard second oral arguments.

ISSUES: (1) Sufficiency of the evidence, (2) prosecutorial error and misconduct

HELD: State’s evidence in this case is examined in detail. Noting the low bar set by the standard of review and the caselaw applying it under similar facts, the evidence viewed in the light most favorable to the State is sufficient for a rational factfinder to find Chandler guilty beyond a reasonable doubt.

State belatedly concedes the prosecutor erred by falsely claiming Sisco got a protection from abuse (PFA) order against Chandler from the district court. Court examines the testimony about the PFA, the prosecutor’s statements, and the lack of any evidence of the PFA in the record, and explains how this error prejudiced Chandler’s due process right to a fair trial. State failed to show there was no reasonable possibility that this error contributed to the verdict. Applying distinction in State v. Sherman, 305 Kan. 88 (2016), prosecutor’s conduct in this case constituted misconduct rather than just error. Chandler’s convictions are reversed and case is remanded for further proceedings.

To avoid reoccurrence on remand, additional claims of prosecutorial error are examined.

  • There was no reasonable good-faith basis for prosecutor to believe there was substantive evidence to tell jury in opening statement that Chandler drove directly up to Nebraska in returning to Denver from Topeka, and to repeat this theme in closing.
  • It was error for prosecutor to tell jury in opening statement that a KBI computer analyst would testify that Chandler searched online for information about how to defend against murder charges or sentencing in murder cases.
  • Prosecutor’s comments about Chandler outsmarting others were error. These comments were unsupported by the evidence, and conveyed the prosecutor’s unfounded, gratuitous belief that Chandler thought the jury was not smart enough to figure out the crime.
  • Prosecutor error to expressly urge the jury to convict Chandler because Chandler “robbed her own children of their father and his fiancee.”
  • Prosecutor violated the district court’s order to not refer to people in the gallery.
  • Claim that prosecutor improperly commented during closing argument on Chandler’s post-arrest silence is discussed. Split of authority in federal courts is noted as to whether using a defendant’s post-arrest, pre-Miranda silence as evidence of guilt violates the right against self-incrimination when the silence is not preceded by police questioning. Kansas Supreme Court has not addressed this exact question and does not do so on the record in this case. But given the lack of foundation, prosecutor’s remark about Chandler’s silence was at best cavalier as to Chandler’s right to a fair trial.

STATUTES: K.S.A. 2017 Supp. 60-455; K.S.A. 21-3401(a), -4635, 60-261, -455, -3101et seq.


constitutional law—criminal procedure—evidence—juries
state v. sullivan
wyandotte district court—affirmed 
court of appeals—affirmed
no. 112,638—april 6, 2018

FACTS: Sullivan was convicted in consolidated trial of charges including multiple counts of rape and aggravated criminal sodomy. District court granted Sullivan’s request to be absent while two law enforcement audio-recorded statements were played to jury in open court, and during sentencing while anyone was speaking on behalf of the State. DVDs containing law enforcement videos of six hours of Sullivan in the interrogation room—admitted into evidence but not played in open court—went to the jury room during their deliberations. Sullivan appealed, claiming the admission of the video-recorded statements without publication in open court violated his right to be present at all critical stages of his trial, and his right to a public trial with an impartial judge. He also claimed the district court unconstitutionally considered Sullivan’s prior convictions to enhance the sentence. Court of Appeals affirmed in unpublished opinion. Sullivan’s petition for review granted.

ISSUES: (1) Right to be present at critical stages of trial, (2) right to public trial with Judge present, (3) sentencing

HELD: Any error in district court’s handling of the DVDs was harmless beyond a reasonable doubt. The critical evidence for the State’s case was played to the jury, and Sullivan demonstrated both during trial and at sentencing that he would not have exercised his right to be present if the DVDs had been played in open court. Moreover, secret jury deliberations are not a critical stage of the proceeding at which a defendant is entitled to be present. The Legislature’s subsequent amendment of K.S.A. 22-3420(c) is noted.

The proceedings related to admitting the DVDs were conducted in open court; the parties were aware of their content; the detectives testified generally in open court about their content; and Sullivan had the opportunity to cross-examine the detectives. Sullivan got the public trial to which he was entitled, and he had no right for the judge to be present during jury deliberations.

Sullivan’s sentencing claim is defeated by State v. Ivory, 273 Kan. 44 (2002).

STATUTES: K.S.A. 22-3405(1), -3420(c)

Kansas Court of Appeals


NO. 117,989 – APRIL 6, 2018

FACTS: The Johnson County Sheriff's Department served a PFA at Baker's residence for his adult daughter. After that occurred, Baker submitted an open records request to the Johnson County District Court asking to inspect and copy audio files from two open court hearings that occurred in the PFA case. Baker was neither a party to nor counsel to a party in the PFA. Baker was told on multiple occasions that he was entitled to request the transcripts from the hearings but that the actual audio files were exempt from disclosure under the Kansas Open Records Act. The district court granted the county's motion to dismiss on grounds that Baker was not entitled to the audio recordings, and Baker appealed.

ISSUES: (1) Mootness; (2) validity of Baker's claim; (3) attorney fees

HELD: Baker was ultimately given the audio recordings before this case was heard on appeal. But this case is one that is capable of repetition and which involves an issue of public importance. There is a public interest in answering the question of whether the audio recordings were exempt from KORA disclosure. The district court misinterpreted the meaning of Supreme Court Rule 362. There is nothing in the plain language of the rule which bars access to electronically recorded hearings of open court proceedings. And there is no provision of KORA which bars release of the requested audio files. Because there is no evidence of any bad faith action, Baker is not entitled to attorney fees.

STATUTES: K.S.A. 2017 Supp. 45-219(a), -221(a), -221(a)(1), -221(a)(20), -222(d); K.S.A. 20-101, 45-218(a)


criminal law—criminal procedure—jury instructions
state v. robinson
pawnee district court—affirmed
no. 116,763—april 6, 2018

FACTS: Robinson charged and convicted of aggravated burglary. He filed an unsuccessful pretrial motion to dismiss the case, claiming selective prosecution because the charge against the other man in the burglary was reduced to criminal trespass. Robinson appealed on the selective-prosecution claim and argued the instructions given to the jury did not allow sufficient consideration of his selective-prosecution defense. Robinson also claimed insufficient evidence supported the conviction.

ISSUES: (1) Selective-prosecution claim, (2) jury instructions, (3) sufficiency of the evidence

HELD: Robinson failed to show the State singled him out based on some arbitrary or invidious criteria. Under facts in case, district court fairly assessed the victim’s testimony as focused on Robinson as the primary actor, and it was undisputed that the criminal records of the two men were substantially different.

The selective-prosecution defense is a question to be decided by the judge on a pretrial motion. It is not a defense that should have been presented to the jury. Any error in the instructions in this case had no impact on the jury’s consideration of Robinson’s actual guilt or innocence.

State presented enough evidence for jury to conclude, beyond a reasonable doubt, that Robinson entered the home intending to commit a theft.

STATUTES: K.S.A. 2017 Supp. 22-3208(3), 60-261; K.S.A. 22-3208(3)

Tags:  judicial qulification 

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March 30, 2018 Digests

Posted By Administration, Monday, April 2, 2018
Updated: Monday, April 2, 2018

Kansas Court of Appeals



NO. 117,518—MARCH 30, 2018

FACTS: Montgomery and another plaintiff were injured after their vehicle was struck by a criminal defendant who was involved in a high-speed chase that was initiated by Trooper Saleh. Montgomery sued both Trooper Saleh and the State of Kansas, claiming that Trooper Saleh initiated and continued the chase with reckless disregard for the safety of others. After discovery, Trooper Saleh moved for summary judgment, claiming that Montgomery failed to state claims that were entitled to relief. The district court granted summary judgment to all defendants, and Montgomery appealed.

ISSUES: (1) Existence of a duty; (2) breach of duty; (3) causation; (4) statutory immunity

HELD: The public duty doctrine does not apply to law enforcement pursuits. Because of that fact, an officer involved in a chase owes a duty to an injured party. Trooper Saleh's actions did not satisfy the standard of care as a matter of law. Because a jury could have concluded that Trooper Saleh acted with reckless disregard, summary judgment was inappropriate. There were issues of genuine material fact surrounding causation, as both sides put forth evidence regarding the proximate cause of the accident. Because there is disputed evidence that needs to be weighed, summary judgment was inappropriate. Neither the discretionary function exception nor the method of providing police protection exception of the Kansas Tort Claims Act apply to excuse Trooper Saleh from liability.

DISSENT: (Gardner, J.) Judge Gardner would affirm the grant of summary judgment due to an inability of Montgomery to prove causation.

STATUTES: K.S.A. 2016 Supp. 60-256(c)(2), 75-6103(a), -6104, -6104(e), -6104(n); K.S.A. 8-1506, -1506(a), -1506(b), -1506(c), -1506(d), -1573




criminal law—jury instructions—statutes
state v. lindemuth
shawnee district court—reversed and remanded
No. 116,937—march 30, 2018

FACTS: Lindemuth threatened Matthews during two phone calls regarding a truck owned by Matthews which was parked on Lindemuth’s Topeka property. One call made while Matthews was in Oklahoma, and the second call made after Matthews had flown to Topeka. During each call, Lindemuth was in his office, and Matthews was not on or near Lindemuth’s property. State charged Lindemuth with two counts of making a criminal threat. Lindemuth requested jury instruction on defense of the workplace. State argued the instruction was not proper because there was no immediate threat. District court denied Lindemuth’s request. Jury convicted Lindemuth of the threat made in the first call, and acquitted him on the second charge. Lindemuth appealed, challenging the district court’s denial of a jury instruction on defense of the workplace.

ISSUE: Defense of the workplace

HELD: K.S.A. 2017 Supp. 21-5521(a)(1)-(2), the statutes defining “use of force” and “use of deadly force,” are examined and considered with K.S.A. 2017 Supp. 21-5523, the statute permitting the defense of the workplace. Under these statutes, the lack of an immediate threat to Lindemuth by Matthews is irrelevant because the defense of the workplace statute limits the use of deadly force only to prevent “imminent death or great bodily harm,” which was not the case here. Lindemuth was entitled to a defense of the workplace instruction, and the reasonableness of Lindemuth’s threat was a question for a properly instructed jury. Reversed and remanded.

STATUTE: K.S.A. 2017 Supp. 21-5221(a)(1), -5221(a)(2), -5223, 60-251

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March 20 and March 23, 2018 Digests

Posted By Administration, Monday, March 26, 2018
Updated: Monday, March 26, 2018

Kansas Supreme Court


NO. 20,382—MARCH 20, 2018

FACTS: In a letter signed March 14, 2018, Justin K. Holstin, an attorney licensed to practice law in Kansas, voluntarily surrendered his license. At the time of surrender, there was a complaint pending alleging several violations of the Kansas Rules of Professional Conduct. Holstin had been through a hearing panel proceeding, where panel members became concerned that Holstin was under the influence of alcohol. Testing confirmed the presence of alcohol on Holstin's breath. At the time of surrender, Holstin's license was temporarily suspended.

HELD: The court accepted the surrender from Holstin, and he is disbarred.


appeals, criminal law—criminal procedure—restitution—statutes
state v. arnett
wyandotte district court—court of appeals—reversed and remanded
NO. 112,572—march 23, 2018

FACTS: In exchange for $200, Arnett loaned her mother’s car to two others who burglarized houses causing damage and theft. Arnett entered guilty plea to conspiracy to commit burglary. State requested restitution of $33,248.83—for property loss from the theft, damage to one of the homes, and homeowners’ expenses. Arnett argued she should only be ordered to pay $200 she received as payment for loaning out the car. District court ordered restitution as requested by the State. Arnett appealed, arguing this violated Apprendi and Section 5 of Kansas Constitution Bill of Rights, and that the State failed to submit evidence to support amount of restitution ordered. After briefs were submitted but prior to oral argument, Arnett submitted a Rule 6.09(b) letter to Court of Appeals to argue a person convicted of conspiracy to commit burglary cannot be held liable for losses or damages resulting from any burglaries or thefts that occur. In unpublished opinion, court of appeals reversed and vacated the restitution order by deciding the case on the argument raised in the Rule 6.09(b) letter, and finding Arnett was not liable for the entire restitution amount because her crime of conspiracy to commit burglary did not cause the damages. State’s petition for review granted.

ISSUES: (1) Preservation of issue, (2) restitution statute

HELD: Under facts in this case, Arnett abandoned any argument whether her crime of conspiracy caused the alleged damages, and appellate review of this issue was precluded by Arnett’s failure to brief the issue because an appellate court will not consider an issue raised for the first time in a Rule 6.09(b) letter. Nonetheless, citing State v. Bell, 258 Kan. 123 (1995), an analogous scenario where court of appeals reviewed sua sponte an issue and review was granted with supplemental briefing to Kansas Supreme Court, Arnett’s issue is considered on the merits.

K.S.A. 2016 Supp. 21-6607(c) is interpreted. Panel erred in reading the statute as requiring that the crime of conviction have a direct causal link to any damages. The causal link between a defendant’s crime and the restitution damages for which the defendant is held liable must satisfy the traditional elements of proximate cause: cause-in-fact and legal causation. Court of appeals decision holding that restitution statute requires a direct causal connection between the crime and the damages, and vacating of the district court’s order of restitution, is reversed. Case is remanded to court of appeals to consider and decide the issues raised in Arnett’s brief to the court of Appeals.

STATUTES: K.S.A. 2016 Supp. 21-6607(c); K.S.A. 2014 Supp. 21-6607(c), -6607(c)(2)


appeals—criminal procedure—juries
state v. brown
sedgwick district court—affirmed
NO. 111,690—march 23, 2018

FACTS: Brown was convicted of aggravated robbery and murder. On appeal he claimed autopsy photos of the victim that were displayed during trial but never formally admitted into evidence were improperly included in the exhibits before the jury during its deliberation, and argued the contemporaneous objection requirement in K.S.A. 60-404 for preserving an issue for appellate review applied only to admitted evidence.

ISSUE: Publication of autopsy photographs to jury

HELD: Subsequent to State v. King, 288 Kan. 333 (2009), the three judicially recognized exceptions for allowing appellate review of issues not raised below have not been applied to absolve a party of K.S.A. 60-404 violations. Under facts in this case, where exhibits were identified and treated by court and counsel as if admitted into evidence, despite no formal admission, on appeal the exhibits are regarded as admitted and K.S.A. 60-404 applies.

STATUTE: K.S.A. 60-404

Tags:  Attorney Discipline 

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March 16, 2018 Digest

Posted By Administration, Monday, March 19, 2018

Kansas Supreme Court


NO. 114,705—MARCH 16, 2018

FACTS: Jason Patterson and Cortney Brewer drowned when they drove their vehicle off a roadway and into the Arkansas River. The road, which was located in Bolton Township in Cowley County, abruptly ended at the river. The County placed a "Pavement Ends" sign where the road transitioned from paved, county road to unpaved, township road. Beyond that, there was no signage to warn drivers that the road ended and the river began. After the accident, Patterson's widow filed suit against the County and the Township, claiming that all parties negligently failed to provide adequate warnings and barricades. The district court granted summary judgment to the Township, finding that it had no legal duty to erect any signage or barricades. As to the County, the district court found that the County was immune under the Kansas Tort Claims Act for failing to post an advisory speed plaque. But the district court refused to enter judgment on the issue of whether the County was negligent for failing to place a "Dead End" or "No Outlet" sign at the end of the pavement. The court similarly failed to find immunity under the KTCA's recreational use exception. Patterson and the County were each allowed to pursue interlocutory appeals. The Court of Appeals affirmed that the County was not entitled to the recreational use or inspection immunity but reversed the district court's ruling on the County's discretionary function immunity. The Supreme Court granted review.

ISSUES: (1) Township duty to install traffic-control devices; (2) county duty to conduct an engineering study; (3) county discretionary function immunity;

HELD: The Township had no statutory duty to place or maintain traffic-control devices. And there is no statute that provides the Township with the authority to adopt ordinances or regulations relating to vehicular traffic. In that absence, the Township had no duty to erect traffic-control devices and was entitled to summary judgment. The Manual on Uniform Traffic Control Devices does not require periodic surveys of the County's roadways that are meant to preemptively spot trouble. All traffic-control devices placed by local authorities must comply with the MUTCD. In this case, the MUTCD did not require the signs sought by Patterson. In the absence of a mandate, the County's failure to post a sign was a discretionary function and entitled to immunity. Because claims against the County are resolved, it is unnecessary to address analysis of the recreational use and inspection immunity defenses.

STATUTES: K.S.A. 2017 Supp. 8-1432. -2005, 68-101(e), -526, -526(b), 75-6102, -6104(h), 80-101; K.S.A. 8-1432, -1442, -1447, -1512(a), -2003, 68-523, 75-6101, 80-301(a), -306, -307

Tags:  Cowley 

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March 9, 2018 Digests

Posted By Administration, Tuesday, March 13, 2018

Kansas Supreme Court


criminal law—criminal procedure—sentences—statutes
state v. Buell
Shawnee district court—reversed, sentence vacated, remanded
court of appeals—reversed
NO. 113,881–March 9, 2018

FACTS: Buell convicted of robbery and attempted kidnapping. In calculating Buell’s criminal history, sentencing court classified Buell’s two prior Florida burglary juvenile adjudications as person felonies. Buell appealed, arguing the Florida adjudications should not have been classified as person felonies because Kansas had no comparable offense. Court of Appeals affirmed Buell’s criminal history and sentence, finding the burgled structure requirements in the Kansas and Florida statutes were comparable, and it was irrelevant that the intent element in the Florida statute differed from the specific intent required for the Kansas offense. 52 Kan.App.2d 818 (2016). Buell’s petition for review granted.

ISSUE: Classification of out of state conviction

HELD: Panel’s single-element view of comparability is rejected. Meaning of “comparable offense” as determined in State v. Wetrich (decided this same day) is applied, finding Buell’s prior Florida burglary juvenile adjudications had no comparable offense in the Kansas criminal code when Buell committed the Kansas crime. Pursuant to K.S.A. 2017 Supp. 21-6811(e), the Florida adjudications must be scored as nonperson felonies. Sentence is vacated, and matter is remanded for resentencing.

STATUTES: K.S.A. 2017 Supp. 21-6811(e), -6811(e)(3); K.S.A. 2015 Supp. 21-6811(e); K.S.A. 2011 Supp. 21-5807, -6804, -6810(a), -6811(e)


appeals—constitutional law—criminal law
criminal procedure—evidence—jury instructions—statutes
state v. gonzalez
pottawatomie district court—affirmed; court of appeals—affirmed
NO. 112,841—march 9, 2018

FACTS: Gonzalez was convicted of unintentional second-degree murder for a shooting death. On appeal Gonzalez claimed for first time that the statute defining unintentional second-degree murder is unconstitutionally vague. He also claimed insufficient evidence supported the conviction; alleged the trial court erred in answering a jury question that sought clarification of the differences between unintentional second-degree murder and involuntary manslaughter; and claimed the trial court should have sua sponte given a limiting instruction about evidence of Gonzalez aiming gun at a passerby some 15 minutes before fatally shooting the victim. Court of Appeals affirmed in an unpublished opinion. Gonzalez’ petition for review granted.

ISSUES: (1) Constitutionality of unintentional second-degree murder, (2) sufficiency of the evidence, (3) jury question, (4) limiting instruction

HELD: Statute defining unintentional second-degree murder is not unconstitutionally vague. Gonzalez’ arguments regarding State v. Deal, 293 Kan. 872 (2012), are rejected. The amended definition of “recklessly” in the 2010 recodification of Kansas Criminal Code does not alter the rationale in State v. Robinson, 261 Kan. 865 (1997), that a difference between unintentional second-degree murder and involuntary manslaughter is one of degree and not one of kind. Finally, Gonzalez’ claim based on Johnson v. United States, 135 S.Ct. 2551 (2015), is misplaced because Johnson does not invalidate Robinson’s rationale.

Jury’s verdict was supported by sufficient evidence which established not only reckless behavior, but also circumstances manifesting extreme indifference to the value of human life.

Gonzalez’ constitutional and statutory rights to be present were violated when trial court prepared the jury question response without Gonzalez or his attorney being present, but that error was harmless beyond a reasonable doubt in light of the entire record. Gonzalez waived or abandoned any challenge to panel’s analysis that trial court’s written response did not violate Gonzalez’ right to a public trial, and Kansas Supreme Court declines to address the public trial question. District court did not abuse its discretion by referring the jury back to the given instructions.

Panel correctly held the district court did not err in failing to give a limiting instruction. The evidence at issue was admitted independent of K.S.A. 2016 Supp. 60-455.

STATUTES: K.S.A. 2016 Supp. 21-5202(j), -5403(a)(2), -5405(a)(1), 22-3405(a), -3414(3), -34120(d), 60-455; K.S.A. 20-3018, -3018(b), 21-3101(c), 22-3417, 60-455, -2101(b)

criminal law—criminal procedure—sentences—statutes
state v. moore
sedgwick district court—reversed, sentence vacated, remanded
court of appeals—reversed
NO. 113,545—march 9, 2018

FACTS: Moore convicted of aggravated indecent liberties with a child. In calculating Moore’s criminal history, sentencing court classified Moore’s 1984 Oregon burglary conviction as a person felony. Moore later filed a motion to correct an illegal sentence, arguing his pre-1993 out-of-state burglary conviction should have been scored as a nonperson felony. District court summarily denied the motion. Moore appealed. Court of Appeals affirmed the denial, finding the burgled structure in the Oregon crime comparable to the dwelling in the Kansas burglary statute, notwithstanding other disparities in the respective crimes’ elements. Moore v. State,  52 Kan.App.2d 799 (2016). Review granted.

ISSUE: Classification of out of state conviction

HELD: Meaning of “comparable offense” as determined in State v. Wetrich (decided this same day) is applied, finding Moore’s 1984 Oregon conviction did not have any comparable offense in the Kansas criminal code when Moore committed the Kansas crime. Pursuant to K.S.A. 2017 Supp. 21-6811(e), the Oregon conviction must be scored as a nonperson felony. Sentence is vacated, and matter is remanded for resentencing.

STATUTES: K.S.A. 2017 Supp. 21-6811(e), -6811(e)(3); K.S.A. 2004 Supp. 21-4704, -4711(e); K.S.A. 21-3715, -4710(a)

appeals—criminal law—criminal procedure—prosecutors—sentences—statutes
state v. sturgis
sedgwick district court—affirmed in part and reversed in part, sentence vacated, remanded
court of appeals—affirmed in part and modified in part
NO. 112,544—march 9, 2018

FACTS: Sturgis was convicted of theft and criminal possession of firearm. In calculating Sturgis’ criminal history, sentencing court classified a prior Michigan conviction for third-degree home invasion as a person offense. Sturgis appealed claiming: (1) error by prosecutor’s comments during closing argument, and (2) error in sentencing court’s classification of the prior Michigan conviction. In unpublished opinion, Court of Appeals found prosecutor misstated the evidence and improperly commented on drug use, but there errors were harmless. Panel also determined the elements of the Michigan offense were broader than the Kansas person felony crime of burglary of a dwelling, but district court should have conducted a modified categorical approach to determine which of the Michigan statute’s alternative elements formed the basis of Sturgis’ conviction.  Sturgis’ petition for review granted. While appeal was pending, State filed change-of-status letter in September 2017 of Sturgis’ release in June 2016.

ISSUES: (1) Custodial status, (2) prosecutorial misconduct, (3) classification of out of state conviction

HELD: State did not argue that the issues presented for review are moot, thus issue of mootness is deemed abandoned.

Each allegation of prosecutorial error is examined. Prosecutor’s comment on Sturgis’ testimony was fair comment to point out inconsistencies and weaknesses, rather than impermissibly comment on Sturgis’ credibility. Prosecutor misstated Sturgis’ testimony, but that error was not a game-changer. Prosecutor’s improper comment implying drug use cuffed the line of reversibility, but panel’s finding of harmless error is affirmed.

Meaning of “comparable offense” as determined in State v. Wetrich (decided this same day) is applied, finding Sturgis’ Michigan home invasion conviction was not comparable to the Kansas burglary of a dwelling offense as it existed when Sturgis committed the Kansas crime. Pursuant to K.S.A. 2017 Supp. 21-6811(e), the Michigan conviction must be scored as a nonperson felony. Convictions are affirmed, sentence is vacated, and matter is remanded for resentencing.

STATUTES:  K.S.A. 2017 Supp. 21-6811(e), -6811(e)(3); K.S.A. 2012 Supp. 21-5807(a)(1), -6810(a), -6811(e)

appeals—criminal procedure—sentences—statutes
state v. warren
wyandotte district court—sentence vacated, remanded
NO. 115,972—march 9, 2018

FACTS: Warren was convicted of premeditated first-degree murder, second-degree murder, and attempted first-degree murder. Hard 50 life sentence was imposed for the off-grid first-degree murder, to run concurrently with the155-month concurrent on-grid sentences for the remaining two counts. Following Alleyne v United States, 570 U.S. 99 (2013), and State v. Santo, 299 Kan. 102 (2014), Warren’s Hard 50 sentence was vacated and case remanded for resentencing. On remand, State sought a lesser sentence that did not constitutionally require impaneling a jury. District court imposed Hard 25 sentence, and ordered all sentences to run consecutively. Warren appealed, arguing State v. Guder, 293 Kan. 763 (2012), and the Kansas Sentencing Guidelines Act (KSGA), barred district court from changing the two non-vacated sentences in length and sequence.

ISSUE: Resentencing on remand

HELD: Holding in Guder is affirmed. KSGA statutory changes to sentencing abrogated the common law authority of district courts to modify any sentences not vacated on appeal, barring the need to alter a non-vacated as a matter of law to avoid an illegal sentence. Applying Guder to facts of this case, district court on remand improperly modified the off-grid sentence to run consecutive to Warren’s on-grid sentence. District court made improper de facto modification to sentences that had not been vacated on appeal, and acted inconsistently with the service of sentence sequence contemplated by K.S.A. 21-4720(b)(2). Remanded for resentencing. District court is ordered to reinstate the original 155-month concurrent on-grid sentences and to run it concurrent with the new Hard 25 off-grid sentence.

STATUTE: K.S.A. 21-4701 et seq., -4720(b), -4720(b)(2), -4720(b)(5), 22-3601(b)(3)

constitutional law—courts—criminal procedure—sentences—statutes
State v. Wetrich
Johnson county district court—reversed, sentence vacated, remanded
court of appeals—affirmed
NO. 112,361—march 9, 2018

FACTS: Prior to sentencing on Kansas offenses, Wetrich unsuccessfully tried to challenge the criminal history scoring of his 1988 Missouri burglary as a person felony.  Court of Appeals reversed and ordered district court to conduct a resentencing hearing. District court again scored the Missouri conviction as a person felony, finding “dwelling” in Kansas statute was comparable with “habitable structure” in the Missouri statute. In unpublished opinion, Court of Appeals vacated Wetrich’s sentence and remanded for resentencing with the correct criminal history score. State petitioned for review, citing a split of authority among Court of Appeals panels regarding the comparability of the Missouri burglary statute.

ISSUE: Classification of out-of-state burglary conviction

HELD: The extent to which recent United States Supreme Court decisions constitutionally mandate the federal identical-or-narrower rule is not examined because issue in this case is resolved by statutory interpretation. For an out-of-state conviction to be comparable to an offense under the Kansas criminal code, the elements of the out-of-state crime cannot be broader than the elements of the Kansas crime. Comparing elements of the Missouri and Kansas burglary offenses, two elements are broader in the Missouri statute - the specific intent required and the structure involved. Wetrich’s prior Missouri conviction should have been classified as a nonperson felony. Reversed, sentence vacated, and case remanded for resentencing.   

STATUTES: K.S.A. 2017 Supp. 21-5807(a)(1), -6811(d)(1), -6811(e), -6811(e)(2)(A), -6811(e)(3); K.S.A. 2008 Supp. 21-4704, -4705, -4710, -4710(a); K.S.A. 21-3110, -3110(7), -3715, -3715(a), -4711, -4711(d)(1), -4711(e)

Kansas Court of Appeals


NO. 117,343—MARCH 9, 2018

FACTS: Gene Hirt was barred from school district property after district officials alleged that he behaved inappropriately at a school board meeting. After reading about the incident, Clark became concerned about the letter that Hirt received, and he wanted to know the exact source and meaning of the district's policy. Clark filed a Kansas Open Records Act request seeking any disciplinary action concerning Hirt as well as any reference to Hirt in official district memorandum. The district denied the request on grounds that it could not disclose correspondence between the district and a private individual. Clark then filed a second KORA request seeking copies of procedures and guidelines that applied to members of the public. The district sent some materials to Clark, but Clark did not believe the materials were responsive to his request, so he filed a complaint in district court. The district court agreed with the district that the letter to Hirt was exempt from disclosure. The district court believed that the district's disclosure of the other materials was appropriate, but that a delay in responding was a technical violation. The court awarded Clark nominal damages and costs. Both Clark and the district appealed.

ISSUES: (1) Mootness; (2) duty to disclose the letter; (3) damages and costs

HELD: Although it is undisputed that Clark now has the letter to Hirt, this appeal is not moot because a question persists regarding whether the district's refusal to provide the letter was allowed under KORA. Although the letter between the district and Hirt was correspondence regarding a private individual, an exception to this exception exists. The district's power to ban a citizen from its property came from the legislative mandate that school boards are allowed to control their property. Because of this power, the district's refusal to provide the letter to Clark violated KORA. Although the district did technically violate KORA by not timely providing materials to Clark, there is no statutory authority for an award of either damages or costs. The district court made no finding that the district acted in bad faith, and the record shows a good-faith effort to comply with Clark's numerous KORA requests. For those reasons, the award of damages and fees was inappropriate and must be reversed.

STATUTES: K.S.A. 2017 Supp. 45-219, -220, -221, -221(a)(14), -222(a), -222(d), 72-1138(e)(1), 1416, -3216(b), -3216(d); K.S.A.  2015 Supp. 45-221(a)(14); K.S.A. 45-216, -218(a), -218(d)



NO.  116,068— MARCH 9, 2018

FACTS: Williams was charged with refusing to submit to a breath test, felony DUI, and failure to maintain a single lane. Because he was charged with a felony, the complaint referenced a prior DUI conviction from municipal court. Williams filed a motion to dismiss the refusal to test count, claiming that the statute unconstitutionally criminalized his failure to submit to a breath test. He also claimed that his prior felony conviction could not be used to enhance his sentence. After that motion was denied, the case was tried, and Williams was found guilty. He objected at sentencing to the enhancement. He appealed his conviction and sentence.

ISSUES: (1) Validity of conviction for failure to submit to a breath test; (2) constitutionality of sentence

HELD: Because K.S.A. 2016 Supp.8-1025 was found to be unconstitutional, Williams' conviction for failure to submit to a breath test must be vacated. There is a clear difference between the municipal ordinance that served as the basis for Williams' prior conviction and the state statute. The Wichita ordinance was broader than the state statute, which means that convictions obtained under the ordinance cannot be used to enhance a punishment.

STATUTES: K.S.A.  2016 Supp. 8-1014, -1025, -1485, -1567, -1567(a), -1567(b)(1)(B), -1567(i)(1), -1567(j), 21-6811(c), -6811(e);  K.S.A. 2012 Supp. 8-1025

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March 2, 2018 Digests

Posted By Administration, Monday, March 5, 2018

Kansas Supreme Court

Attorney Discipline


NO. 118,378—MARCH 2, 2018

FACTS: A hearing panel determined that Haley violated KRPC 1.3 (diligence), 3.2 (expediting litigation), 5.5(a) (unauthorized practice of law), 8.4(d) (engaging in conduct prejudicial to the administration of justice), and 8.4(g) (engaging in conduct adversely reflecting on lawyer's fitness to practice law). Haley's license to practice law in Missouri was suspended in 2007 after he failed to file an appeal in federal court. At the same time, Haley failed to complete his annual registration requirements in Kansas, and his Kansas law license was suspended. It was not until Haley began to explore reinstatement that the Kansas disciplinary administrator learned of Haley's misconduct suspension in Missouri. Haley's Missouri license was reinstated in 2015, although he was placed on probation. But he never addressed the reciprocal discipline issues that existed in Kansas.

HEARING PANEL: Most of the conduct addressed by the hearing panel occurred in Missouri. But Haley did self-report one instance of unauthorized practice which occurred when he prepared a codicil for his mother's will. While Haley's experience with the practice of law was an aggravating factor, there were significant mitigating factors including mental health conditions and Haley's cooperation with the process. The disciplinary administrator recommended that Haley be suspended for one year, with that suspension stayed so that Haley could complete a term of probation. The hearing panel agreed with the disciplinary administrator and made that recommendation to the court.

HELD: After considering the hearing report, the court imposed a one-year disciplinary suspension. If Haley is able to satisfy all administrative requirements to end his administrative suspension, he will be allowed to petition the court for an order to suspend the disciplinary suspension and the imposition of a two-year probation period.


NO. 113,928—MARCH 1, 2018

FACTS: In October 2015, the court stayed the imposition of a two-year suspension and placed Hueben on probation for two years, with specific conditions. In November 2017, Hueben filed a motion for discharge from probation along with evidence of her compliance. That compliance was confirmed by the Office of the Disciplinary Administrator.

HELD: After reviewing the motion, affidavits, and recommendation of the disciplinary administrator, the motion is granted. Hueben is discharged from probation and this matter is closed.




constitutional law—criminal law—criminal procedure—Fifth Amendment—immunity—jurisdiction—statutes
state v. delacruz
reno district court—reversed and sentence vacated—court of appeals—reversed
No. 111,795—march 2,2018

FACTS: Victim murdered in robbery committed by Delacruz and four others, including Waller. Delacruz convicted of aggravated robbery. Thereafter, State subpoenaed Delacruz as witness at Waller’s murder trial. Delacruz refused court orders to testify, claiming in part the immunity offered did not protect his Fifth Amendment right against self incrimination. State filed accusation of contempt, and jury found Delacruz guilty of direct criminal contempt of court. A 108-month sentence imposed, consecutive to his 83-month aggravated robbery sentence. Delacruz appealed on his Fifth Amendment claim, and challenged the length of his sentence. Court of Appeals affirmed the contempt conviction and sentence. 52 Kan.App.2d 153 (2015).

ISSUES: (1)  Subject matter jurisdiction, (2) fifth amendment right against self incrimination

HELD: Court considered sua sponte whether contempt order was void for lack of jurisdiction. District court’s journal entry failed to comply with the compulsory statutory procedure in K.S.A. 20-1203 for direct contempt, but Delacruz failed to challenge the district court’s jurisdiction and a decision on the merits is especially clear. Court presumes, without deciding, that district court did not lose jurisdiction to find Delacruz in direct contempt of court through a deficient journal entry.

            State granted Delacruz mere use immunity, rather than derivative immunity. Delacruz had a valid Fifth Amendment right to refuse to testify because the immunity granted to him was not coextensive with his constitutional right against self-incrimination. The order of contempt is reversed, and the sentence imposed is vacated.

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

STATUTE: K.S.A. 20-1201, -1203, 22-3415, -3415(a), -3415(b)(2), -3415(c), 60-425


constitutional law—criminal procedure—statutes
state v. hayes
atchison district court—affirmed
No. 116,717—march 2, 2018

FACTS: Hayes was convicted in 1994 of first-degree murder, aggravated robbery, and conspiracy to commit robbery. Convictions affirmed on direct appeal, 258 Kan. 629 (1995). In 2015 Hayes filed pro se motion to correct an illegal sentence. District court summarily dismissed the motion, finding no merit or legal basis. Hayes appealed, claiming district court denied him due process by failing to hold a hearing on the motion without Hayes being present, as required by the plain language of K.S.A. 22-3504.

ISSUE: Motion to correct an illegal sentence

HELD: Hayes’ statutory argument is defeated by holding in State v. Campbell, 307 Kan. 130 (2017), that a district court’s preliminary examination of a motion to correct an illegal sentence does not trigger the movant’s right to be present. Hayes’ due process claim is defeated by holding in State v. Swafford,  306 Kan. 537 (2017), that the summary denial, without a hearing, of a motion to correct an illegal sentence does not run afoul of the Fourteenth Amendment’s due process guarantee.

STATUTES: K.S.A. 2017 Supp. 22-3504(1) -3504(3), -3601(b)(3); K.S.A. 2016 Supp. 21-6801 et seq., K.S.A. 22-3504


Kansas Court of Appeals



constitutional law—criminal law—Evidence—Fourth Amendment -
state v. perkins
ellis district court—affirmed
No. 112,449—march 2, 2018

FACTS: Officer stopped Perkins for traffic infraction, conducted field sobriety tests, and arrested him for driving under the influence of alcohol. Result of agreed-to breath test was over the legal limit. Perkins moved to suppress the breath test results, claiming consent was coerced and involuntary, and breath test was an unreasonable search that violated Fourth Amendment. District court denied the motion and convicted Perkins on stipulated facts. Perkins appealed. Court ordered supplemental briefing to address rulings by the United States and Kansas supreme courts while this appeal was pending. State argued the warrantless breath test result was constitutionally admissible as a result of a search incident to an arrest. Alternatively, State argued for application of the good-faith exception to the exclusionary rule.

ISSUES: (1) Search incident to arrest, (2) good-faith exception to the exclusionary rule

HELD: District court correctly denied Perkins’ motion to suppress. Under Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), and State v. Nece, 303 Kan. 888 (2016)(Nece I), aff’d on reh’g, 306 Kan. 679 (2017)(Nece II), Perkins’ consent was coerced because he was told it was a crime to refuse the test, but officer was permitted to conduct the breath test in this case as a lawful search incident to arrest.

Additionally, the breath test result was admissible because the officer, in good faith, acted in reliance on the implied consent statute before it was ruled unconstitutional by the Kansas Supreme Court.

CONCURRENCE (Atcheson, J.): Agrees the good-faith exception to the exclusionary rule applies here, and district court’s denial of the suppression motion should have been affirmed on that basis alone. Majority should have declined to explore alternative pathway of search-incident-to-arrest exception to the Fourth Amendment warrant requirement. He is unpersuaded that the search-incident-arrest exception provides an alternative rationale in this case, and voices risk of implicitly promoting untoward government action and Fourth Amendment violations.

STATUTES: K.S.A. 2016 Supp. 8-1001, -1025; K.S.A. 2014 Supp. 8-1025; K.S.A. 2012 Supp. 8-1025, -1567(a)(2), -1567(a)(3), -1567(b)(1)(B)

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February 23, 2018 Digests

Posted By Administration, Monday, February 26, 2018

Kansas Supreme Court

Attorney Discipline

NO. 118,226—FEBRUARY 23, 2018

FACTS: After a formal complaint was filed, and after Geniuk failed to respond or answer, a hearing panel determined that Geniuk violated KRPC 5.5(a) and (b) (unauthorized practice of law); 7.1(a) (communications concerning a lawyer's services); 8.3(a) (reporting professional misconduct); 8.4(d) (engaging in conduct prejudicial to the administration of justice); Rule 207(c) (failure to report action); 208(c) (failure to notify Clerk of the Appellate Courts of change of address); and 211(b) (failure to file answer in disciplinary proceeding). Geniuk was admitted to the Kansas bar in 2007 and the Missouri bar in 2008. His Kansas license was suspended in 2013 for failure to comply with all annual licensure requirements. Despite the suspension, Geniuk continued to practice in Kansas. After a Kansas judge asked Geniuk about his status, Geniuk informed the court that he was licensed in Missouri. The court did not believe that any rule allowed Geniuk to appear in Kansas and he was asked to leave the court. After a complaint was filed and during the investigation, it was discovered that Geniuk's web site advertised that he provided legal services in Kansas.

HEARING PANEL: After considering the aggravating factors and the lack of mitigators, the hearing panel unanimously recommended that Geniuk be indefinitely suspended.

HELD: Geniuk did not appear at the hearing before the court. Because he filed no exceptions, the hearing panel's report was admitted. Geniuk's failure to appear was considered to be an additional aggravating factor, and a majority of the court ordered that he be disbarred. A minority of the court would have imposed the lesser sanction of indefinite suspension.


criminal procedure—guilty plea
State v. DeAnda
finney district court—affirmed
No. 115,828—February 23, 2018

FACTS: DeAnda entered guilty plea to first-degree murder in exchange for State dismissing charges of rape and aggravated criminal sodomy. District court accepted the plea and imposed hard-50 life sentence. Sentence vacated on appeal and remanded for resentencing under Alleyne v. United States, 570 U.S. 99 (2013). Prior to resentencing DeAnda filed motion to withdraw his plea, claiming: ineffective advocacy by trial counsel; the plea process and competency evaluation conspired to take advantage of his fragile mental state; and his plea was not free, knowing, and understandable. District court denied the motion, finding none of the three factors in State v. Edgar, 281 Kan. 30 (2006), were satisfied. DeAnda appealed.

ISSUE: Motion to Withdraw a Plea

HELD: No abuse of district court’s discretion in its assessment of the Edgar factors. Case record of the entire plea process, including the plea agreement, counsel’s advice, and the plea colloquy, does not support any of DeAnda’s claims. District court’s denial of DeAnda’s motion to withdraw his plea is affirmed.

STATUTES: K.S.A. 2016 Supp. 22-3210(d), -3210(d)(1), -3601(b); K.S.A. 21-4635, 60-2010(b)

Kansas Court of Appeals


constitutional law—forfeiture—fourth amendment—Search and Seizure
state v. One 2008 Toyota Tundra
geary district court—affirmed
No. 117,571—february 23, 2018

FACTS: Officer stopped a Toyota Tundra for partially obstructed vehicle license. K-9 alert to drugs resulted in seizure of the truck, $84,820 in currency, and 11.9 grams of marijuana. State filed civil forfeiture action against the seized property, giving notice to the driver and passenger as parties who might have ownership interest. District granted the passenger’s motion to suppress this evidence, finding the officer unreasonably prolonged the stop beyond its original purpose by requesting a criminal check on the driver and thereby allowing time for the K-9 search. State filed interlocutory appeal.

ISSUE: Fourth Amendment – Traffic Stop

HELD: Fourth Amendment exclusionary rule applies to civil forfeiture actions. Validity of the initial traffic stop is not challenged, but under facts of this case, the officer’s request of dispatch to conduct a criminal history check of the driver was unjustified and it unreasonably prolonged the stop. At the time of that request, tasks associated with the stop had been completed, and any safety concerns associated with the stop no longer existed. Kansas Supreme Court has not directly addressed impact of Rodriguez v. United States, 575 U.S. __ , 135 S.Ct.1609 (2015), on the duration of a routine traffic stop. Panel declines State’s invitation for a bright-line rule that all traffic stops permit criminal history checks as part of a traffic violation. District court’s conclusion that the seizure that occurred during the dog sniff violated the Fourth Amendment is affirmed.

STATUTES: K.S.A. 60-4101 et seq.

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February 16, 2018 Digests

Posted By Administration, Wednesday, February 21, 2018

Kansas Supreme Court

Attorney Discipline

NO. 118,204—FEBRUARY 16, 2018

FACTS: The Disciplinary Administrator's Office filed a formal complaint against Hult alleging multiple violations of the KRPC. A hearing panel determined that Hult violated KRPC 1.1 (competence), 1.3 (diligence), 1.4(a) (communication), 1.5 (fees), 1.15(a) (safekeeping property), 1.16(d) (termination of representation), 3.2 (expediting litigation), 3.4(c) (fairness to opposing party and counsel), 8.4(d) (engaging in conduct prejudicial to the administration of justice), 8.3(a) (reporting professional misconduct), Rule 207(c) (failure to report action), and Rule 211(b) (failing to file an answer in a disciplinary proceeding). The complaints involved Hult's immigration practice, and subsequent discipline, in Iowa as well as in Kansas.

HEARING PANEL: The hearing panel found that, through a pattern of misconduct, Hult injured his clients. Although the hearing panel did determine that Hult suffers from anxiety and depression, it agreed with the disciplinary administrator that indefinite suspension would be an appropriate sanction.

HELD: After noting that Hult stipulated to the violations, the Court considered the appropriate discipline. Hult agreed that indefinite suspension was an appropriate sanction, and the court imposed that discipline.

NO. 10,687—FEBRUARY 14, 2018

FACTS: In a letter signed January 29, 2018, Kevin M. Manz voluntarily surrendered his license to practice law. At the time of surrender, a disciplinary compliant was pending which alleged that Manz committed misconduct after being convicted for three felony convictions of grand theft.

HELD: The court accepted the surrender and Manz was disbarred.


NO. 112,645—FEBRUARY 16, 2018

FACTS: Bunyard was arrested after allegedly choking and breaking the jaw of his girlfriend. During a pre-trial hearing, Bunyard interjected and asked to address the court. The judge denied that request, telling Bunyard that he could have counsel communicate or he could represent himself. Bunyard made an "unequivocal" request to represent himself. The district court refused to consider this oral motion. A jury found Bunyard guilty as charged. The Court of Appeals considered Bunyard's argument on his request to represent himself and determined that no error occurred. His convictions were affirmed and the Supreme Court granted review.

ISSUE: Right of self-representation

HELD: After filing multiple pro se motions, Bunyard made an unequivocal request to represent himself. But the district court did not follow up, counsel Bunyard, or try to determine his informed wishes. Bunyard had no way to comply with the direction to file a written motion, and the demand for such left Bunyard without recourse. The district court's error in not allowing Bunyard to self-represent was structural and requires a reversal of all of Bunyard's convictions.

STATUTES: No statutes cited.

NO. 107,963—FEBRUARY 16, 2018

FACTS: Daniel pled no contest to attempted kidnapping and domestic battery. At sentencing, Daniel learned that he would be required to register under the Kansas Offender Registration Act. The State contended that registration requirement would be in place for the rest of Daniel's life, while Daniel's counsel argued for a 10-year registration period. The parties briefed the issue for the court, and Daniel's counsel conceded that the registration requirement was not "punishment", meaning a lifetime term was constitutionally permissible. After receiving a sentence which included a lifetime registration requirement. Daniel appealed. The Court of Appeals refused to reach the merits of Daniel's arguments, finding that Daniel invited error by conceding that the registration requirement was not a punishment. The Supreme Court accepted Daniel's petition for review.

ISSUE: Invited error

HELD: Generally, constitutional claims cannot be raised for the first time on appeal. In this case, Daniel failed to set out an exception to this general rule. The Court of Appeals is affirmed on the ground that Daniel's claim was never preserved for appeal.

STATUTE: K.S.A. 2011 Supp. 22-4906(d)(9), -4906(d)(12)

NO. 108,576—FEBRUARY 16, 2018

FACTS: Ibarra pled guilty to two counts of aggravated indecent liberties. Prior to sentencing, Ibarra moved for both dispositional and durational departures from the presumptive sentence. He claimed that his age, the consensual nature of the relationship, and his ongoing treatment warranted leniency in sentencing. The district court granted only the motion for downward durational departure, finding that Ibarra suffered from a mental impairment which affected his judgment. Ibarra was also ordered to register as a sex offender for the remainder of his life. Ibarra appealed, arguing that the district court erred by denying his motion for dispositional departure and that the lifetime registration requirement violated the Ex Post Facto Clause. The Court of Appeals summarily affirmed the registration requirement, finding that the ex post facto argument was improperly raised for the first time on appeal. The rest of the appeal was dismissed for lack of jurisdiction because the district court had not departed adversely to Ibarra. The petition for review was granted.

ISSUES: (1) New constitutional issue on appeal; (2) reviewability of sentence

HELD: Generally, constitutional issues cannot be raised for the first time on appeal. Although Ibarra did put forth an exception to that rule, he loses on the merits because the registration requirement is not a punishment. The Court of Appeals erred by declining jurisdiction over Ibarra's departure sentence issue. But the claim fails on the merits. The district court did not err by denying the motion for dispositional departure.

DISSENT (Beier, J., joined by Rosen and Johnson, JJ): The dissent is based on the justices' on-going belief that registration is punishment.

STATUTE: K.S.A. 2010 Supp. 21-3504(c), -4704

NO. 111,550—FEBRUARY 16, 2018

FACTS: Johnson was charged with one count of possession of methamphetamine with intent to sell, one count of criminal possession of a firearm, and other drug-related offenses. Johnson agreed to plead guilty to the possession of methamphetamine with intent to sell charge and the firearm charge. In exchange for his plea, the State agreed to dismiss the remaining counts and make concessions at sentencing. But before Johnson could be sentenced he was charged with another count of possession of methamphetamine with intent to sell. Neither the State nor Johnson's counsel became aware of this charge until Johnson was being sentenced. At this sentencing hearing, Johnson moved to withdraw his plea, arguing that he was innocent and wanted a jury trial. After a counsel change, a new agreement was reached, and Johnson withdrew his motion to withdraw plea. After his sentences were affirmed on direct appeal, Johnson moved to withdraw his plea on grounds that trial counsel was ineffective. That motion was denied, and the Court of Appeals affirmed that decision. Johnson's petition for review was granted.

ISSUE: Withdrawal of plea

HELD: Johnson cannot carry his burden to show that the district court abused its discretion, and he similarly cannot show that he was misled into pleading guilty. For these reasons, the district court is affirmed.

STATUTES: K.S.A. 2016 Supp. 22-3210(a)(2), -3210(d)(2); K.S.A. 22-4902(a)(11)(C), -4905(b)(1), -4906(a)(2)

NO. 112,635—FEBRUARY 16, 2018

FACTS: Wright was convicted of first-degree premeditated murder and conspiracy to commit murder. In a previous proceeding, the issue arose about whether Wright's constitutional rights were violated when he was not physically present at a continuance hearing. After his conviction, Wright raised several issues on appeal.

ISSUES: (1) Presence at continuance hearing; (2) premeditation jury instruction; (3) prosecutorial misconduct; (4) intent instruction

HELD: Wright's absence from the courtroom at the continuance hearing violated his constitutional rights. But that absence did not result in reversible error, because Wright's presence would not have made a difference in the outcome. The jury instruction given by the court was a correct statement of the law and the court did not err by including that language in the premeditation instruction. At the instructions conference, the prosecutor made a legally erroneous claim in asserting that case law directed certain language to be used in an instruction. But any error that resulted was harmless. Any issue regarding the intent instruction was not properly preserved. But even if addressed on the merits it does not show reversible error.

CONCURRENCE (Johnson, J. joined by Luckert, J.): Justice Johnson does not believe that Wright's absence from the courtroom during the continuance hearing was harmless error. But because statutory speedy trial rights are not of constitutional magnitude, the outcome of this decision is appropriate.

STATUTE: K.S.A. 2016 Supp. 21-5202(h)

Kansas Court of Appeals


NO. 117,750—FEBRUARY 16, 2018

FACTS: After she was alerted by a citizen, a Highway Patrol officer stopped Carlson's driver while he was delivering a truck from Topeka to Kansas City. During an inspection, the trooper noticed that the truck did not have a USDOT number. Carlson alleged that it did not need to register its vehicles, but the driver was ticketed for failure to pay Unified Carrier Registration Act fees. The KCC then sent Carlson a notice of violation for failure to register with USDOT and pay the UCR fee. Carlson objected but the fee was upheld through the administrative process. After Carlson filed a petition for judicial review, the district court reversed the fee. It determined that since the property being delivered was the vehicle, it was not necessary to pay the UCR fee. The KCC appealed.

ISSUE: Necessity of fee payment

HELD: Carlson did not meet the definition of "motor carrier" and was not under KCC jurisdiction when driving the truck. Instead, Carlson was merely delivering a vehicle to its purchaser. Because Carlson was not subject to registration, the fine should be reversed.

STATUTE: K.S.A. 2016 Supp. 8-143(b)(4), 66-1,108(f), -1,108(i), -1,108b, -1,109, -1,109(q), -1,115, 77-603, -621(c)(4) 

NO. 116,456—FEBRUARY 16, 2018

FACTS: After the death of his spouse, Field prepared a will that left the bulk of his sizeable estate to Fort Hays State University. Field met Wanda Oborny and he eventually offered her a job as his bookkeeper. In that capacity, Oborny had access to Field's funds, and she received hundreds of thousands of dollars from him. After Field's death, Oborny claimed that she found a codicil to Field's will that left half of his estate to her. The codicil bore no witness signatures, but two of Oborny's friends claimed that they saw Field sign and codicil. They died prior to trial, but their testimony was admitted via videotaped deposition. After a lengthy hearing, the district court denied Oborny's attempt to admit the codicil to probate. But upon her motion, the district court granted Oborny's motion for attorney fees in the amount of $1 million. Oborny appealed regarding the codicil, and FHSU appealed the attorney fees.

ISSUES: (1) Admission of the codicil to probate; (2) attorney fees

HELD: As the proponent of a testamentary instrument, Oborny had the burden to make a prima facie case that Field had the capacity to duly execute the codicil. Field's testamentary capacity was not at issue, he was clearly competent prior to his death. And on its face, the codicil appears to comply with statutory requirements. Because Oborny met her obligations, the burden shifted to FHSU to prove that the codicil was invalid. Fraud must be proven by clear and convincing evidence. And abundant evidence supports the conclusion that the codicil was not signed by Field. It was an error of fact to conclude that Oborny acted in good faith when attempting to admit the codicil to probate. The award of attorney fees to Oborny was an abuse of discretion and that decision was reversed.

STATUTE: K.S.A. 59-606, -1504, -2224. 84-1-201(19)

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February 9, 2018 Digests

Posted By Administration, Monday, February 12, 2018

Kansas Supreme Court


constitutional law—criminal law—death penalty—judges—juries—jury instructions—statutes
state v. kahler
osage district court—affirmed
106981—february 9, 2018

FACTS: Kahler convicted in part of capital murder. No dispute that he fatally shot four victims, but defense argued severe depression rendered Kahler incapable of forming the intent and premeditation required for capital murder. On appeal Kahler claimed:

  1. prosecutor improperly objected to defense counsel's attempt during closing argument to repeat words on a Life Alert recording made during the killings;
  2. six instances of judicial misconduct during trial;
  3. district court erred in not instructing jury on expert witness testimony;
  4. adoption of mens rea approach in K.S.A. 22-3220 unconstitutionally deprived Kahler of asserting an insanity defense;
  5. district court filed to sua sponte instruct jury on felony murder as a lesser included offense;
  6. district court denied Kahler a fair trial by prohibiting defense counsel from questioning prospective jurors about their views on the death penalty;
  7. cumulative trial errors denied Kahler a fair trial;
  8. death sentence imposed upon a severely mentally ill person violates the Eighth Amendment;
  9. the two statutory aggravating factors advanced by the State to justify the death penalty were unconstitutional; and
  10. insufficient evidence supported jury's finding that the crime was committed in an especially heinous atrocious, or cruel manner.


  1. Prosecutorial error;
  2. judicial misconduct;
  3. expert witness instruction;
  4. constitutionality of Kansas death penalty statute;
  5. lesser offense felony murder instruction;
  6. limitations on defense voir dire;
  7. cumulative error during guilt phase;
  8. Eighth Amendment categorical challenge to death penalty;
  9. constitutionality of aggravating circumstances;
  10. sufficiency of the evidence of an aggravating factor

HELD: Prosecutor's objection was within the permissible latitude to object to the defense summation going beyond the admitted evidence. The alleged ill will of the prosecutor in making the objection has no bearing on whether the objection itself was prosecutorial error.

Specific allegations of judicial misconduct examined, finding only one harmless error:

  1. While district court's preliminary admonition against outbursts of opinion was reasonable, better practice to also clarify that panel members would have opportunity to raise personal concerns outside the presence of other venire members.
  2. Merely requesting trial counsel to move faster if possible is not judicial misconduct, but better practice to make such administrative requests out of panel's presence.
  3. District court's editorial comment about the instruction that counsels' statements are not evidence, given right after defense opening statement, was harmless error.
  4. No misconduct in district court judge questioning a witness for clarification, but better practice to follow the procedure in State v. Boyd, 222 Kan.155 (1977).
  5. District court's premature sustaining of prosecutor's objection to defense counsel repeating words on Life Alert recording was not judicial misconduct, but it was unassigned trial error which alone did not require reversal.
  6. District court's remarks before sending jurors to deliberate did not discourage jurors from asking any questions.

District court erred in refusing to give the requested instruction on expert witness credibility, but error was harmless.

Kahler's arguments are the same as those considered and rejected in State v. Bethel, 275 Kan. 456 (2003), which held the mental disease or defect defense adopted in K.S.A. 22-3220 did not unconstitutionally abrogate Kansas's former insanity defense. Further review of Bethel is not warranted.

Felony murder is not a lesser included offense of capital murder.

Under facts in this case, district court did not prohibit defense counsel from questioning prospective jurors during voir dire about their views on the death penalty.

Cumulative effect of trial errors did not deny Kahler a fair trial, and the identified guilt-phase errors are not the type to impact the same jury's sentencing determination.

Pursuant to State v. Kleypas, 305 Kan. 224 (2016), the Kansas death penalty is not categorically disproportionate punishment for offenders who are severely mentally ill at the time they commit their crimes.

Kansas cases have rejected Kahler's challenge to the constitutionality of the two statutory aggravating factors found in his case.

State presented sufficient evidence to establish that the killings were committed in a heinous, atrocious, or cruel manner. Evidence supports the jury's weighing determination of mitigating and aggravating circumstances, and the jury's sentencing verdict.

CONCURRENCE and DISSENT (Biles, J., joined by Stegall, J.): Concurs with majority's decision to confirm Kahler's convictions and sentences, but disagrees with majority's finding of misconduct and error by the district court judge's aside that “I normally don't do this” before giving pattern jury instruction about remarks of counsel. If error, agrees it was harmless. At worst, this should be a simple “teaching moment” to caution judges about banter with juries.

DISSENT (Johnson, J): Addresses each claim individually, generally agreeing with majority's analysis and decisions on all issues but for the following:

  • Disagrees with majority's suggestion that prosecutor's bad faith or ill will can never play any role in error analysis.
  • Disagrees with majority's reliance on Bethel to reject Kahler's constitutional challenge to K.S.A. 22-3220. Death penalty was not involved in Bethel, and Kansas Supreme Court is obligated to independently analyze whether the procedure of replacing insanity defense with mens rea approach undermines the reliability of jury's determination to impose death penalty.
  • Agrees the cumulative effect of trial errors in this case do not require reversal of the guilty verdict, but strongly disagrees that guilt-phase errors can be ignored when considering the same jury's penalty-phase decision. Would hold the errors in this case undermined the reliability of jury's death sentence, which should be vacated and remanded for a new sentencing trial.
  • Expands his Kleypas dissent to now address Kahler's Eighth Amendment claim. Categorical protection of mentally retarded defendants in Atkins v. Virginia, 536 U.S. 304 (2002), is discussed and critically compared to mentally ill defendants under Kleypas.
  • As unassigned error impacting fairness and justice, reasserts his conclusion that the death penalty violates the Kansas Constitution.

STATUTES: K.S.A. 2016 Supp. 21-3439(a)(6), -5402(d), -6617, -6619, -6619(b), 22-3414(3); K.S.A. 2012 Supp. 21-5402; K.S.A. 21-3439(a), 22-3220, -3420(3)

Kansas Court of Appeals


NO. 116,825 – FEBRUARY 9, 2018

FACTS: Ramos was ticketed by city police for traffic infractions. Without appearing in court, Ramos pled no contest and paid his ticket and court costs. Ramos apparently had a change of heart, and three months later he filed a motion to withdraw his plea. The motion was denied by a municipal judge, and Ramos appealed to district court. Once the case was in district court the city filed a motion to dismiss, claiming that the district court lacked jurisdiction because the appeal was filed more than 14 days after Ramos paid his fine. The district court granted the city's motion and Ramos appealed.

ISSUES: (1) Timeliness of the notice of appeal; (2) jurisdiction to consider motion to withdraw plea

HELD: Because Ramos never appeared in court, his sentence was effective on the date in September 2015 when he paid his fine online. Ramos did not file his notice of appeal to the district court until January 2016, well outside of the 14 days allowed by statute. Ramos' appeal was untimely and the district court did not err by dismissing the case on timeliness grounds. The ability to appeal the denial of a motion to withdraw plea differs depending on whether the plea was accepted by a municipal court or by a district magistrate judge or district judge. The plain language of K.S.A. 2016 Supp. 22-3609(a) does not allow for an appeal from the denial of a motion to withdraw plea that was entered in municipal court.

STATUTES: K.S.A. 2016 Supp. 22-3602, -3602(a), -3609, -3609(a), -3609(b), -3609a(a); K.S.A. 12-4102, -4103, -4305(a), -4305(c), -4508

Tags:  constitutional law  death penalty  judges  jury  Osage  Shawnee 

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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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