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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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November 17, 2017 Digests

Posted By Administration, Monday, November 20, 2017

Kansas Supreme Court

Attorney Discipline

NO. 117,607—NOVEMBER 17, 2017

FACTS: A hearing panel determined that Works violated KRPC 1.2(c) (scope of representation), 1.3 (diligence), 1.4(a) (communication), 1.16(d) (termination of representation), and 3.2 (expediting litigation). The violations occurred after Works was appointed to represent clients on appeal but failed to docket the cases

HEARING PANEL: When determining the appropriate discipline, the hearing panel noted that Works was disciplined on five prior occasions. But there were a number of mitigating factors, including Works' mental health issues and a traumatic house fire. The disciplinary administrator recommended that Works be placed on probation with an underlying suspension of 12 months to two years. After noting that Works provided a workable, substantial probation plan, the hearing panel determined that a term of probation was in the best interests of the legal profession and the general public.

HELD: The court admitted the hearing panel's final hearing report. A majority of the court agreed with the hearing panel that Works should be suspended for two years, with imposition of that discipline stayed and a three-year term of probation. A minority of the court would have imposed a harsher sanction, including a period of immediate suspension.

Kansas Court of Appeals


NO. 116,764—NOVEMBER 17, 2017

FACTS: Wasinger was hired to design and construct a parish rectory for a church in Russell. The contract included a requirement that the parties submit to "binding mediation" if disputes arose during the construction process. A dispute arose early during the process. Under the terms of the contract, the parties went to mediation and received a decision. Wasinger did not agree with that decision, and as a result he filed a mechanic's lien on the property. Wasinger followed up by filing a motion to foreclose on the lien. The Diocese filed a motion for summary judgment in which it claimed that the clause requiring "binding mediation" was actually an arbitration provision, meaning that the mediator's decision was binding. The district court granted the motion and this appeal followed.

ISSUES: (1) Whether mediator's decision was binding; (2) lack of cross-appeal

HELD: Kansas case law does not recognize "binding mediation." The mediation set out in the contract was a voluntary, out-of-court alternate dispute resolution procedure. By statute, a mediator in Kansas has no decision-making authority. It was a mistake to use the terms "mediation" and "arbitration" interchangeably. Under the plain language of the contract, Wasinger was free to seek judicial resolution of issues not resolved by mediation. The Diocese did not cross-appeal the district court's ruling on arbitration which means this issue cannot be considered on appeal. And the argument fails on the merits because the district court erred when finding that interstate commerce was implicated.

STATUTE: K.S.A. 5-405(a), -405(b), -405(c), -502(e), -502(f), -502(g), -502(h), -502(m)


NO. 116,886—NOVEMBER 17, 2017

FACTS: Allen was serving an 18-month term of probation when he committed two new offenses. He served a 30-day term in custody for violating his probation and received a sentence of probation for the new offenses. Allen then violated his probation for a second time. A judge in the first case imposed a 60-day jail sanction. A different judge in the second case also imposed a 60-day jail sanction to be served consecutively to the first sanction. Allen objected but the district court overruled the objection and Allen appealed.

ISSUE: Ability to sentence terms consecutively

HELD: K.S.A. 2016 Supp. 22-3716(c)(10) requires that any intermediate sanctions must be imposed concurrently. There is nothing in the statute suggesting that this language does not apply to cases heard before different judges. Although Allen has served his entire sentence, this case is capable of repetition and is of public importance so it is not moot.

STATUTE: K.S.A. 2016 Supp. 22-3716(c)(1)(B), -3716(c)(1)(C), -3716(c)(1)(D), -3716(c)(10), -3716(c)(11)

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November 9, 2017 Digests

Posted By Administration, Monday, November 13, 2017
Updated: Monday, November 13, 2017

Kansas Supreme Court

Attorney Discipline

NO. 117,361 – NOVEMBER 9, 2017

FACTS: A hearing panel determined that Schneider violated KRPC 1.3 (diligence) and 1.4(b) (communication). These violations arose after Schneider failed to list possible federal and state earned income credit exemptions on bankruptcy petitions. Schneider's inaction resulted in his clients' inability to respond to orders from the court.

HEARING PANEL: The panel noted that Schneider's actions were negligent and that he timely made restitution to his clients which ameliorated the consequences of his misconduct. Schneider also fully cooperated with the hearing panel and acknowledged wrongdoing. The disciplinary administrator recommended a 3-month suspension. The hearing panel noted that in the 2 years since the misconduct first arose there had been no further incidents and that Schneider had taken steps to correct his diligence issues. For those reasons, the hearing panel suggested published censure.

HELD: The court adopted the hearing panel's conclusions. After following up with the complainant, the disciplinary administrator recommended at the hearing on this matter that Schneider be disciplined by published censure. The court agreed and the sentence was imposed. 


NO. 108,233 – NOVEMBER 9, 2017

FACTS: Hayes was convicted of involuntary manslaughter in 1998. After his release from prison, Hayes was charged with two counts of violating the Kansas Offender Registration Act. He was sentenced to probation but violated the terms and he served a 38-month prison sentence. After that conviction and sentence, Hayes filed a K.S.A. 60-1507 motion in which he challenged, among other things, amendments to KORA. Hayes acknowledged before the district court that his 1507 pleading was untimely, but he asked the court to rule on the merits. The district court disagreed and denied the motion on grounds that Hayes could not show manifest injustice such that the 1-year time limitation should be extended. Hayes appealed. The Court of Appeals affirmed that decision and Hayes' petition for review was granted.

ISSUE: (1) Constitutionality of subjecting Hayes to the 1-year statute of limitations

HELD: After Hayes filed his motion, the Legislature amended K.S.A. 60-1507 to more clearly define what constitutes manifest injustice. The question of whether that amendment applies retroactively to Hayes need not be answered because Hayes cannot show manifest justice under any standard.

STATUTES: K.S.A. 2016 Supp. 60-1507(f); K.S.A. 2006 Supp. 22-4904(b); K.S.A. 1997 Supp. 22-4902(d)(5), -4906(a); K.S.A. 60-1507


attorneys and clients – constitutional law – criminal procedure – sentencing
state v. richardson
sedgwick district court – affirmed 
court of appeals – affirmed
no. 107,786 – november 9, 2017

FACTS: Richardson convicted in 2003 of sale of cocaine.  After he was sentenced, the Kansas Offender Registration Act (KORA) was amended to require registration by those convicted of that drug offense.   Richardson thereafter pled guilty to offender registration violations.  Prior to sentencing he filed pro se motions to withdraw his plea and for appointment of new counsel, pursuing an ex post facto challenge to the retroactive application of the amended KORA.  District court denied both motions.  Richardson appealed claiming he should have been allowed to withdraw his plea, and claiming his attorney failed to advise him of the ex post facto issue.  In unpublished opinion, Court of Appeals affirmed. Richardson’s petition for review granted.  

ISSUES: (1) Ex Post Facto Challenge to KORA; (2) Conflict of Interest - Attorney and Client

HELD: Lifetime sex offender registration under KORA does not constitute “punishment” for application of the Eighth Amendment or the Ex Post Facto Clause.  Non-sex offenders seeking to avoid retroactive application of KORA provisions must satisfy the “effect” prong of test set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), by producing a record that distinguishes — by the “clearest proof” — KORA’s effect on those classes of offenders from KORA’s effects on sex offenders as a class. Richardson failed to do so on the the record in this case.

Richardson cannot show his attorney provided incorrect legal advice.  District courts are reminded that if they become aware of a potential conflict between a defendant and his or her attorney, they abuse their discretion if they fail to conduct an inquiry.

DISSENT (Beier, J., joined by Rosen and Johnson, JJ.):  Dissent is consistent with her votes in State v. Petersen-Beard, 304 Kan. 192 (2016); State v. Reed, 306 Kan. 899 (2017); and State v. Meredith,306 Kn. 906 (2017).  Richardson met any burden of proof he bore at this point, and should be permitted to withdraw his plea for good cause shown.    

STATUTES: K.S.A. 2010 Supp. 22-4904(c); K.S.A. 2007 Supp. 22-4902(a)(11)(C); K.S.A. 22-4901 et seq.

Kansas Court of Appeals


NO. 116,896 – NOVEMBER 9, 2017

FACTS: AkesoGenX Corporation (AKG) is a Delaware corporation with its principal place of business in Kansas. Zavala was AKG's CEO. He was terminated after money was found to be missing from the company's accounts. AKG sued both Zavala and Kunkle, the company's Secretary/Treasurer, for breach of fiduciary duty and conversion. After Zavala failed to appear at a scheduling conference, the district court granted default judgment to AKG. Zavala then moved to set aside the default, claiming that he was never served with the petition. That motion was denied. Zavala responded by filing a motion to reconsider. In that motion, Zavala claimed, for the first time, that the judgment was void because AKG's articles of incorporation included a forum selection clause that required all proceedings to be in Delaware. That motion was denied and Zavala appealed.

ISSUES: (1) Denial of the motion to reconsider; (2) Whether the forum selection clause was mandatory or permissive; (3) Denial of motion to set aside default judgment

HELD: Forum selection clauses are valid in Kansas as long as certain criteria are met. But the existence of a forum selection clause does not divest a court of subject matter jurisdiction. In this case, Zavala's complaint was really about venue. And complaints about venue can be waived. In order to preserve the complaint an objection to venue must be timely raised in a responsive pleading. While Zavala did raise the issue in a pleading it was not timely. Because AKG could consent to venue outside of Delaware, the forum selection clause in its articles of incorporation was permissive rather than mandatory. And the evidence shows that AKG waived venue in Delaware when it initiated this legal action in Kansas. Zavala failed to include the transcript from the hearing on the motion to set aside default judgment. In the absence of that transcript, the district court's decision cannot be evaluated. Since Zavala had the burden to designate the appellate record his argument fails. Because service was properly obtained on Zavala in California, it does not matter if service was not perfected in Texas.

STATUTES: K.S.A. 2016 Supp. 60-205, -205(b)(2)(B)(ii), -205(e), -212(b)(3), -255(b), -258, -259(f), -260(b)(1), -308(a); K.S.A. 60-260(b)(6)



NO. 117,034 – NOVEMBER 9, 2017

FACTS: Police officers in the City of Mission received two reports of a suspicious truck. Both callers reported seeing a man park the truck and then walk into the woods. While Officer Hodge was investigating the second report, Schreiner walked out of the woods and back to his truck. Schreiner refused to answer Officer Hodge's questions and attempted to leave the scene in the truck. Officer Hodge temporarily detained Schreiner until he could finish the investigation. After the investigation did not disclose any illegal activity, Schreiner was allowed to leave. The entire encounter took between 20 and 25 minutes. Schreiner filed a pro se action against Officer Hodge seeking damages for assault, battery, false arrest, and false imprisonment. Officer Hodge moved for summary judgment claiming discretionary function immunity. The district court agreed and granted the motion. Schreiner appealed.

ISSUES: (1) Application of discretionary function immunity

HELD: A police officer may detain a citizen if the officer reasonably suspects that criminal activity is occurring. This is a discretionary act based on the officer's training and experience. Schreiner's actions were suspicious and his actions in dealing with Officer Hodge provided justification for the subsequent investigation. For this reason, Officer Hodge is entitled to discretionary function immunity and summary judgment was appropriate.

CONCURRENCE AND DISSENT (Atcheson, J.): Because Officer Hodge's action was unreasonable under the Fourth Amendment his behavior cannot be excused by the discretionary function exception.

 STATUTES:  K.S.A. 2016 Supp. 75-6104(e); K.S.A. 22-2402(1)

Tags:  Attorney Discipline  Johnson  Sedgwick 

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November 3, 2017 Digest

Posted By Administration, Monday, November 6, 2017

Kansas Supreme Court




NO. 22,022—NOVEMBER 1, 2017

FACTS: In a letter signed October 19, 2017, Jerome M. Patience, an attorney admitted to practice law in Kansas, voluntarily surrendered his law license. At the time of surrender, a disciplinary complaint was pending. The complaint was filed after Patience was charged with several felony offenses in Missouri.

HELD: The court found that the surrender of Patience's license should be accepted, and Patience is disbarred.

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October 27, 2017 Digests

Posted By Administration, Tuesday, October 31, 2017

Kansas Supreme Court


NO. 113,104—OCTOBER 27, 2017

FACTS: The Chicago Pacific Railway Company operated on the disputed property beginning in 1886. In 1985, Chicago Pacific quitclaimed its interests in the property to Dirt & Gravel, Inc. Jenkins acquired her ownership interest via quitclaim deed from Dirt & Gravel. Jenkins later sued to quiet title, asking for a determination that she was a fee simple owner. Jenkins alternately claimed that she acquired fee title through the quitclaim deed or that she acquired title through adverse possession. Chicago Pacific moved for summary judgment, claiming that the 1886 deed only allowed a right of way that would revert to abutting landowners when the property was abandoned by the railroad. The district court granted the motion, finding that Jenkins could not have acquired any title through a quitclaim deed. The district court granted Jenkins' K.S.A. 60-254(b) motion in order to allow an immediate appeal on the question of ownership.

ISSUES: (1) Jurisdiction; (2) real property acquisition from a railroad; (3) the language of the 1886 deed

HELD: Jenkins filed her notice of appeal before the district court made the proper K.S.A. 2016 Supp. 60-254(b) certification. But subsequent certification cured this defect, rendering her notice of appeal timely. When a railroad acquires land for a right of way it generally obtains only an easement. When that easement is abandoned, the estate reverts to the original land owners. In this case, the 1886 deed described the subject property in a manner consistent with a right of way.

STATUTE: K.S.A. 2016 Supp. 60-254(b), -2102, -2102(a), -2102(b), -2102(c)


criminal procedure—evidence—statutes
state v. gray
harvey district court—reversed on issues subject to review
court of appeals—reversed on issues subject to review
112,035—october 27, 2017

FACTS: Officer followed and eventually stopped Gray’s car for failing to use turn signal. Gray filed motion to suppress evidence obtained in search of car, alleging the officer violated the biased-based policing statute, K.S.A. 2014 Supp. 22-4609 et seq.  District court denied the motion, and in bench trial convicted Gray of charged offenses. Gray appealed, in part challenging the denial of his motion to suppress, and challenging the district court’s jurisdiction to convict Gray of felony possession of marijuana. Court of Appeals reversed or downgraded some conviction offenses but affirmed the district court’s suppression ruling, finding substantial competent evidence supported the determination that Gray was not actually stopped because of his race. 51 Kan.App.2d 1085 (2015). Review granted, in part, on this issue.   

ISSUE: Remedy for violation of K.S.A. 2014 Supp. 22-4606(d) and 22-4609

HELD: Issue of first impression regarding test to be applied under Kansas’ biased-based policing statutes, the availability of a suppression remedy, and the test for determining whether a biased-based policing violation occurred. This appeal involves statutory, rather than constitutional, consideration. K.S.A. 22-3216(1), which permits a defendant aggrieved by an unlawful search and seizure to move to suppress evidence, provides a suppression remedy for violation of K.S.A. 2014 Supp. 22-4606 et seq. When considering such a motion, the district judge must examine more than the ultimate justification of a traffic stop and must consider wether the officer unreasonably used race or any other characteristic listed in K.S.A. 22-4606(d) in deciding to initiate the enforcement action. Unable to determine from the record in this case whether the district judge applied the correct test and evaluated whether the officer unreasonably used raced in deciding to initiate the traffic stop. Convictions reversed and remanded for further action in accord with this decision.   

STATUTES: K.S.A. 2014 Supp. 22-4606 et seq., -4606(d), -4607, -4609, -4609(d); K.S.A. 8-1548, 20-3018(b), 22-3216, -3216(1), -3216(2), -4609



appeals—criminal procedure—jury instructions—jurisdiction 
state v. saylEr
kingman district court—affirmed; court of appeals—affirmed
11,0048—october 27, 2017

FACTS: Sayler convicted in Kingman county of failing to register under the Kansas Offender Registration Act (KORA). On appeal he argued for first time that the trial court lacked subject matter jurisdiction over the prosecution because the charging document failed to allege he resided in Kingman County, and similarly, that the jury instructions permitted the jury to convict him without finding this essential element of the offense.  In unpublished opinion, the Court of Appeals rejected both arguments and affirmed the conviction. Review granted on both issues. Thereafter, State v. Dunn, 304 Kan. 773 (2016), significantly changed the law on charging document sufficiency, holding the sufficiency of the charging document does not implicate the state courts’ subject matter jurisdiction in criminal cases.

ISSUES: (1) Sufficiency of the charging document, (2) jury instructions

HELD: Issue considered for first time on appeal because the appeal straddled the period before and after Dunn and because parties were expressly asked to brief Dunn’s impact on the merits. The charging document in this case was sufficient under Dunn because it alleged facts that, if proved beyond a reasonable doubt, would constitute the crime of failing to register under KORA.

No error found in the jury instructions.

STATUTES: K.S.A. 2016 Supp. 21-5108(a), 22-4905(b); K.S.A. 2011 Supp. 22-4903; K.S.A. 20-3018(b), 22-3201(f), 22-4901 et seq., 60-2101(b)



constitutional law—criminal procedure—crimes and punishment—jurisdiction
state v. scuderi
reno district court—affirmed
court of appeals—affirmed on issues subject to review
107,114—october 27, 2017

FACTS: In unpublished opinion, Court of Appeals affirmed Scuderi’s two convictions and sentences for failing to register under the Kansas Offender Registration Act. Review granted on his claims that: (1) the registration requirements are ex post facto punishment for a drug offense committed before registration was required; (2) his criminal history was unconstitutionally used to calculate the sentences imposed; and (3) the complaint initiating one of his convictions was deficient because it failed to allege he resided in the county where the State alleged he failed to register.

ISSUES: (1) Ex post facto challenge, (2) criminal history score in sentencing, (3) sufficiency of the charging document

HELD: Scuderi’s ex post fact challenge is foreclosed by State v. Shaylor, 306 Kan. 1049 (2017)(retroactive imposition of registration requirement was not punishment). Scuderi failed to create a factual record in support of his claim that registration impacts drug offenders differently than sex offenders by making reintegration into society more difficult.

Kansas Supreme Court has repeatedly rejected Scuderi’s Apprendi claim.

Scuderi’s challenge to the sufficiency of the complaint was defeated by State v. Sayler, 306 Kan. __ (2017)(decided this same date), applying State v. Dunn, 304 Kan. 773 (2016).  

DISSENT (Beier, J., joined by Rosen and Johnson, JJ.): Consistent with her dissents in State v. Meredith, 306 Kan. 906 (2017), and State v. Huey, 306 Kan. 1005 (2017), she dissented from majority’s decision in this case on the ex post facto challenge.

STATUTE: K.S.A. 20-3018(b), 22-4901 et seq., -4904, 60-2101(b), 65-4161


Kansas Court of Appeals



NO. 116,415—OCTOBER 27, 2017

FACTS: Moulden transferred title to two classic cars to his daughter, Hope Hundley, in 2005. The cars were stored in Moulden's garage when she wasn't using them, and they were in Moulden's garage when Hope died in 2012. Hope's widower, Dustin, transferred the car titles to his name in 2013. But when Dustin attempted to take possession of the cars, Moulden asked the court to determine the rightful owner of the cars. He claimed that he never meant for Hope to be a full owner of the cars. When filing suit, Moulden also sought the return of furniture that he loaned to Hope. Dustin countersued, claiming that Moulden waited too long to make any such claim and asking that he be declared the owner of the disputed furniture. The district court ruled that Hope – and subsequently Dustin – owned the cars but that Moulden owned the furniture.

ISSUE: Property ownership

HELD: K.S.A. 59-2239 operates as a special statute of limitations for claims against an estate. Moulden did not petition to have the cars returned within the 6 months allowed by the statute. Despite Moulden's claims to the contrary, K.S.A. 59-2239 applies to the facts of this case. Mere possession of the cars did not change their ownership. A two-year statute of limitations applied to Moulden's attempt to reclaim the furniture. Hope used the furniture under a bailment, with Moulden being the bailor. After Hope died, Dustin continued to possess the property under a constructive bailment. Because the bailment existed, the statute of limitations clock did not begin to run until Dustin refused to return the furniture to Moulden. Moulden's suit was not time-barred, and the district court's ruling on ownership was correct.

STATUTE: K.S.A. 8-126(cc), 59-2239, 60-513(a), -513(b) 





constitutional law—crimes and punishment—evidence—fourth amendment
state v. carr
shawnee district court—reversed and remanded
116,228 - october 27, 2017

FACTS: Officer stopped vehicle he associated with Carr, a suspect in a drive-by shooting. Officers found the driver of the car was Carr’s aunt, and Carr was a passenger. Officers arrested and searched Carr, finding a car key, a cell phone, and cash. Marijuana was found in Carr’s pocket during a subsequent search. Without a search warrant, police used Carr’s cell phone to determine its phone number. Then with search warrant, obtained phone records from cell phone provider to determine cell-tower information to locate Carr near the scene of the shooting. Carr filed motion to suppress all evidence obtained in an unlawful car stop. District court denied the motion, finding the stop was lawful. District court also found the officers unlawfully searched the phone, but police would have inevitably discovered the cell phone number by lawful means and used it to get a search warrant. Carr appealed the denial of his motion to suppress, and the admission of testimony by a cell phone provider employee about Carr’s cell phone records.

ISSUES: (1) Reasonable suspicion for vehicle stop, (2) suppression of cell phone records, (3) suppression of marijuana, (3) suppression of car key, (4) cell phone records

HELD: Officers lacked reasonable suspicion to believe Carr was in the vehicle they stopped. To stop a vehicle based on suspicion that a person subject to police investigatory detention is in it, an officer must have specific and articulable facts that the person is in the vehicle. If officer knows only that a relative of the suspect owns a similar car that had at some point been seen at the suspect’s residence, the officer does not have specific and articulable facts to support reasonable suspicion that the suspect is in the vehicle at the time. The key, the cash, and the marijuana should not have been admitted as evidence at trial.

Carr’s cell phone was obtained through an unlawful car stop, and police then used Carr’s cell phone number to obtain relevant phone records. Under facts in case, however, district court did not err in determining the cell phone records were admissible under the inevitable-discovery exception to the exclusionary rule.

Carr’s conviction for possession of marijuana is reversed because the only evidence supporting this conviction stemmed from the unlawful stop.

Carr was connected to a vehicle used in a drive-by shooting in part because officers found car key in his pocket during an unlawful car stop the day after the shooting. Based on evidence in the case, court cannot say beyond a reasonable doubt that the admission of the key and other inadmissible evidence obtained through the unlawful car stop had no effect on the jury’s verdict. Carr’s conviction for aggravated battery was reversed and remanded for a new trial.

District court did not err in admitting cell phone records maintained in the ordinary course of business by a cell phone provider.  

STATUTES: K.S.A. 2016 Supp. 60-460(m); K.S.A. 22-2402(1), -3216(2)




constitutional law—crimes and punishment—Fifth Amendment—evidence—expert testimony—jury instructions—statutes
state v claerhout
johnson district court—affirmed
115,227—october 27, 2017

FACTS: Claerhout caused car crash while driving under the influence (DUI), which resulted in the death of another motorist. He was charged with reckless second-degree murder, or alternatively, involuntary manslaughter. Prior to jury trial he conceded guilt to involuntary manslaughter, and unsuccessfully challenged the admission of: expert witness testimony; statements Claerhout made to officers at the scene without Miranda warnings; and his prior DUI diversion agreement. District court also instructed jury over Claerhout’s objection that voluntary intoxication was not a defense agains the crime of reckless second-degree murder. On appeal Claerhout argued the district court erred by: (1) admitting Claerhout’s prior DUI diversion agreement; (2) allowing police officer to testify as expert accident reconstructionist; (3) not suppressing statements made to an officer following the crash; and (4) not granting request for instruction on voluntary intoxication as a defense to reckless second-degree murder.

ISSUES: (1) Admission of prior DUI diversion agreement, (2) expert testimony, (3) admission of statements to officer, (4) jury instruction on voluntary intoxication

HELD: No abuse of district court’s discretion in admitting the prior DUI diversion agreement for the stated purpose of showing Claerhout’s state of mind. This evidence was relevant to prove that he acted recklessly under circumstances manifesting extreme indifference to the value of human life. Probative value of the exhibit outweighed its prejudicial effect where the court limited the purpose for which it could be used, and where Claerhout was permitted, but failed, to raise additional information about the diversion, including the underlying circumstances which did not include erratic driving. Even if abuse of the district court’s discretion is assumed, the error was harmless. Statutory rather than constitutional analysis applies to the erroneous admission of 60-455 evidence, and overwhelming evidence supports Claerhout’s conviction.

Any error resulting from trial court’s determination that the officer was qualified to testify as an expert accident reconstructionist was harmless under facts in this case.

Any error resulting from the admission of statements Claerhout made at the scene of the crash about his previous consumption of alcohol was harmless under facts in this case.

District court appropriately instructed jury that voluntary intoxication is not a defense to the charged crimes. Reckless second-degree murder is not a specific intent crime, approving the rationale in State v. Spicer, 30 Kan.App.2d 317 (2002), and two unpublished opinions. Claerhout’s reliance on State v. Kershaw, 302 Kan. 772 (2015), is criticized.

DISSENT (Green, J.): The admission of Claerhout’s previous DUI diversion agreement was error, and unconstitutionally infringed on his right to a fair trial. Majority’s decision that this evidence was relevant conflicts with safeguards mandated in State v. Gunby, 282 Kan. 39 (2006), regarding the admission of 60-455 evidence, and the holding in State v. Boggs, 287 Kan. 298 (2008). Claerhout’s previous DUI was of no legal relevance as to whether his conduct showed an extremely reckless behavior. The probative value of this evidence was substantially outweighed by risk of prejudice, confusion, and distraction on that issue where the admission of this evidence shattered Claerhout’s confession and avoidance defense, and the prosecutor’s closing and rebuttal arguments improperly revolved around the propensity inference from the diversion agreement.

STATUTES: K.S.A. 2016 Supp. 21-5202(j), -5205(b), -5403(a)(2), -5405(a), 60-261, -455, -456(b); K.S.A. 2014 Supp. 21-5403(a)(2), -5403(a)(3); K.S.A. 8-1566, 60-455

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October 20, 2017 Digests

Posted By Administration, Monday, October 23, 2017

Kansas Supreme Court




NO. 117,517—OCTOBER 20, 2017


FACTS: A hearing panel determined that James violated KRPC 1.3 (diligence), 1.4(a) (communication), 1.7(a)(2) (conflict of interest), 1.15(a) and (b) (safekeeping property), 1.16(a) (declining representation), 3.2 (expediting litigation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice). The complaints arose after James took on several clients with the promise to file post-divorce modification motions but failed to do so.

HEARING PANEL: The hearing panel concluded that James' lack of communication and diligence harmed his clients. James had a prior disciplinary record, but there was no evidence of dishonest motive, and James made his clients whole through refunds. Because of that fact, the disciplinary administrator recommended that James be suspended for 1 year but that the suspension be stayed while James served a period of probation. The hearing panel agreed, with the caution that James should serve a 2-year suspension, with that order stayed during a 3-year probation term.

HELD: The court adopted the hearing panel's findings and conclusions. After reviewing the record, the court ordered that James be suspended for 1 year, with the imposition of the suspension stayed pending successful completion of a 3-year period of probation.



Kansas Court of Appeals




NO. 116,888—OCTOBER 20, 2017

FACTS: The Allens owned a rental home in Montgomery County. While their tenants were away from home, a two-state police chase ended at the property. Two of the suspects were quickly apprehended but one eluded capture. That man eventually ended up inside the home owned by the Allens. It is unclear how he gained entry, it was either through an unlocked door or by breaking a window. While officers attempted to have the suspect surrender, both the Allens and the tenants gave permission for officers to enter the home. But because the suspect was accused of attempted murder, the officers felt like that strategy was too dangerous. Instead, law enforcement opted to use tear gas and pepper spray to drive the suspect from the home. In addition, in an attempt to be careful, officers also received a search warrant for the home. The tear gas canisters fired into the home caused extensive damage to the property, but the suspect was captured without further incident. The repair estimates obtained by the Allens exceeded the insured value of the home. Marysville, their insurance company, denied the claim because of a policy exclusion that denied coverage for a "loss which results from order of civil authority." The district court found that since law enforcement did obtain a search warrant, the damage was covered by the exclusion. The district court granted Marysville's motion for summary judgment, and the Allens appealed.

ISSUE: Whether the policy exclusion applied to this loss

HELD: The district court erred by finding that the order-of-civil-authority exclusion applied. Officers here did not need a warrant to enter the Allens' property; there was clearly probable cause that the suspect had committed attempted murder, and the officers knew that the suspect was inside the home. The search warrant was obtained in an effort to forestall an expected motion to suppress by the suspect. The damage caused to the residence had nothing to do with the search warrant. The Allens believe that Marysville was obligated to reimburse them under a policy provision which provided coverage for damage caused by vandalism, since the extensive damage that occurred was a proximate cause of the suspect's entry into the house. But there is no clear evidence to show whether the suspect entered the home by breaking a window (covered vandalism) or by walking through an unlocked door (not covered). More factual findings are necessary, so the case is remanded.

STATUTES: K.S.A. 2016 Supp. 60-256(e); K.S.A. 22-2401(c), -2405(3)

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No New Posts from Friday, October 13, 2017

Posted By Administration, Monday, October 16, 2017
No decisions were published the week of October 9-13, 2017

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October 2, 2017 Digest

Posted By Administration, Tuesday, October 10, 2017

Kansas Supreme Court


NO. 113,267—OCTOBER 2, 2017

FACTS: Article 6 of the Kansas Constitution requires the legislature to "make suitable provision for finance of the educational interests of the state." These plaintiffs filed suit in 2010, alleging both inequitable and inadequate funding of K-12 public education. In 2013, a three-judge panel agreed, finding that the State's school finance formula failed both equity and adequacy tests. After the legislature's CLASS legislation was struck as constitutionally insufficient, the legislature was tasked with bringing the state's education finance system into compliance with Article 6. The legislature responded with Senate Bill 19. The centerpiece of that legislation is the new Kansas School Equity and Enhancement Act, which established a new education funding formula under which some funds come from the State via an amount arrived at by formula, and some funds come from local option budgets. The base aid per student for year 2018-18 is $4,006; that amount increases to $4,128 in 2018-19. School districts may add on local funding up to 33% of the district's total foundation aid. Less wealthy districts may also qualify for supplemental state aid, in recognition of varying property wealth among districts. This appeal follows from the plaintiffs' challenge to the KSEEA.

ISSUES: (1) Adequacy requirements; (2) equity requirements; (3) equal access to substantially similar educational opportunity through similar tax effort; (4) effect of change to LOB equalization calculation; (5) at-risk funding procedures; and (6) remedies

HELD: The State did not meet its burden to show that the public education financing system established by SB 19 is constitutionally adequate. Over-reliance on local option budget (LOB)-generated funds tends to create an unconstitutional funding structure. Although the formula allots additional funds to at-risk students, the State failed to prove that the additional funds were calculated to improve student performance. Similar outcomes were shown for funding allotted for full-day kindergarten and early childhood education programs. A school finance formula is inequitable if it increases wealth-based disparities between districts. SB 19 allows school districts to use capital outlay funds to pay property and casualty insurance and utility expenses. This allows general funds or LOB funds to be used for other purposes, giving districts more flexibility in their spending, and this variable flexibility is tied to district wealth. A district's wealth is tied to its ability to gain voter approval of a proposed mill levy increase. For this reason, the provision in the school finance formula that allows some districts to impose a mill levy increase without facing either a protest-petition process or a mandatory election is inequitable. SB 19's lookback provision—which changes how supplemental aid is calculated relative to LOB funding—exacerbates the discrepancies caused by local funding that is tied to property values. As such, it is inequitable. SB 19 established a 10% floor for at-risk students in any given district. This provision uses a wealth-based standard and, as such, it is inequitable. The court declined to provide a specific dollar amount that would be constitutionally adequate. The state educational system has been more or less underfunded since the 2002-03 school year. The mandate in this case is stayed until June 30, 2018, but no longer.

CONCURRENCE AND DISSENT: (Johnson, J., joined by Rosen, J.) Justice Johnson agrees with the majority's rulings on adequacy and equity. But he disagrees that the State should be given additional time to come into compliance. He would have the State provide a proposed remedy by the end of this year.

CONCURRENCE AND DISSENT: (Biles, J.) Justice Biles agrees with the majority findings on adequacy and equity. But he would have immediately enjoined SB 19's inequitable features from being operational in the 2017-18 school year.

STATUTES: Kansas Constitution, Article 6; K.S.A. 2016 Supp. 72-1127, -6470, -6471(e), -8255, -8801(a), -8804, -9608; K.S.A. 2014 Supp. 72-6407(a), -6407(c), -6407(e), -6407(f), -6414(a), -6431, -6433, -6434, -6460, -8801, -8814(b); K.S.A. 2013 Supp. 72-6433(a)(1), -6434(a), -8814; K.S.A. 2012 Supp. 72-6414a(b); K.S.A. 2011 Supp. 72-6414a(b); K.S.A. 2008 Supp. 72-6433c(b)(9)(B); K.S.A. 2006 Supp. 72-6454; K.S.A. 2005 Supp. 46-1131(b), 72-1127; K.S.A. 60-409(b), -412(c), 72-6433(b)(9)(B)

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September 29, 2017 Digests

Posted By Administration, Tuesday, October 3, 2017
Updated: Tuesday, October 3, 2017

Kansas Supreme Court – Attorney Discipline

NO. 17,370 – SEPTEMBER 29, 2017

FACTS: Studtmann was disbarred in November 2003. He filed a petition for reinstatement in March 2016. A hearing panel of the Kansas Board for Discipline of Attorneys conducted a hearing and recommended that the petition be granted, with the condition that Studtmann continued to receive treatment.

HELD: The petition for reinstatement is granted, subject to conditions. Studtmann must continue to receive treatment from Dr. Parker until Dr. Parker believes that treatment is no longer necessary. Studtmann must also complete a bar review course that has been approved by the court and must pay all outstanding fees.


NO. 99,410 – SEPTEMBER 29, 2017

FACTS: Walsh was indefinitely suspended from the practice of law in May 2008. He filed a petition for reinstatement in December 2016. After conducting a hearing, a hearing panel recommended that the petition be granted.

HELD: After considering the record, the court grants Walsh's petition for reinstatement. The reinstatement is conditioned on Walsh's compliance with the annual continuing legal education requirements and upon payment of all fees. 

Kansas Court of Appeals – Criminal

criminal procedure - Juries - prosecutors
state v. hirsh
barton district court:  affirmed in part, reversed in part, vacated in part, remanded
no. 116,356 – september 29, 2017

FACTS: Hirsh convicted of aggravated assault, criminal threat, and domestic battery.  During trial, jury asked if pillow over victim’s head could be considered a deadly weapon for aggravated assault, same as a gun pointed at victim’s pillowed head.  In response over Hirsh’s objection, district court told jury to refer to the instructions.    On appeal Hirsh claimed:  (1) district court’s response to jury’s question allowed jury to convict him of uncharged crime; (2) his two criminal threat convictions are multiplicitous; (3) prosecutor improperly commented that victim was telling the truth; (4) State violated Brady by not disclosing potential impeachment evidence that was disclosed when prosecutor cross examined Hirsh’s witness on last day of trial; (5) jury should have been recalled to investigate alternate juror’s claim that several jurors had not disclosed they were victims of domestic violence; (6) cumulative error denied him a fair trial; and (7) district court violated Apprendi by making “deadly weapon” finding to impose violent offender registration requirement.  

ISSUES: (1) Response to Jury Question, (2) Multiplicitous Convictions, (3) Comment on Victim Credibility, (4)  Brady Violation, (5) Recall - Jury Misconduct, (6) Cumulative Error, (7) Apprendi Violation - Sentencing

HELD:  On facts of this case, both a handgun and a pillow could be considered a deadly weapon to support the aggravated assault charge, but State charged Hirsch with committing the offense with a handgun.  The legally appropriate response would have been to inform jury that based on the charge, it must find the deadly weapon was a handgun rather than a pillow.  District court abused is discretion by failing to provide a meaningful response, and the error was not harmless in this case.  Aggravated assault conviction is reversed, sentence is vacated, and case is remanded for new trial on that charge.

Under the unit prosecution test, Hirsh’s criminal threat convictions are not multiplicitous.  He made one single communicated threat against his wife, and another single communicated threat against their children.

Prosecutor committed error by saying the victim was telling the truth, but under facts in case the error was harmless.

No Brady violation. Prosecutor did not suppress any evidence, and parties discovered the evidence at the same time while witness was on the stand.  Even if inadvertent suppression of this evidence, the error would have been harmless in this case. 

No abuse of district court’s discretion in denying Hirsh’s motion for recall. Counsel never asked any juror at issue whether they personally had experienced domestic violence or knew someone who had experienced it, and jurors were not required to volunteer this information.    

Aggravated assault conviction was reversed due to district court error. Remaining error committed by prosecutor during closing argument does not merit reversal of the remaining convictions. 

Apprendi claim not addressed because aggravated assault sentence, which included the violent offender registration, was vacated. 

STATUTES:  K.S.A. 2016 Supp. 21-5412(b)(1), -5415(a)(1); K.S.A. 22-3420(3), 60-261, -2105

Tags:  Attorney Discipline  order of reinstatement 

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September 22, 2017 Digests

Posted By Patti Van Slyke, Monday, September 25, 2017

Court of Appeals

NO. 116,500—SEPTEMBER 22, 2017

FACTS: In 2014, the City of Maize passed an ordinance addressing certain issues found in mobile home parks. Huffman filed a petition for declaratory judgment and injunctive relief against the city, claiming that the ordinance exceeded the city's police powers and violated his constitutional rights to due process. The district court granted the city's motion for summary judgment and this appeal followed.

ISSUES: Constitutionality of the city's ordinance

HELD: The court's standard of review requires that it search for ways to uphold the ordinance as constitutional. Municipalities have police powers and the Home Rule Amendment gives municipalities broad powers to adopt ordinances on any subject not addressed by the state legislature. The subjects addressed by the disputed ordinance fall well within the city's police powers, as the ordinance was enacted to serve the health, safety and welfare of the residents of the mobile home park. There is no equal protection violation, and the district court made adequate findings of fact and conclusions of law.

STATUTES: Kansas Constitution, article 12, § 5; K.S.A. 2016 Supp. 60-252(a)(1), -256(c)(2)

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