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August 28, 2020 Digests

Posted By Administration, Monday, August 31, 2020

Kansas Supreme Court

Attorney Discipline

ORDER OF DISBARMENT
IN RE SUSAN ELIZABETH VAN NOTE
NO. 16,327—AUGUST 26, 2020

FACTS: In 2012, the Disciplinary Administrator initiated an investigation into Van Note after she was charged with two counts of murder in Missouri. Her license was temporarily suspended while the criminal process concluded. Van Note was acquitted on criminal charges and a wrongful death lawsuit was settled. Van Note was disbarred in Missouri in 2017. In a letter signed by Van Note on July 21, 2020, she voluntarily surrendered her license to practice law in Kansas.

HELD: The Court accepts the surrender of Van Note's license to practice law in Kansas and she is disbarred.

criminal

appellate procedure—contracts—criminal procedure—evidence—motions
state v. Braun
ellis district court—reversed and remanded; court of appeals—reversed
No. 113,762—august 28, 2020

FACTS: State charged Braun with DUI under K.S.A. 2012 Supp. 8-1567(a)(2) for having blood alcohol content of more than 0.08, and in the alternative with DUI under K.S.A. 2012 Supp. 8-1567(a)(3). Braun filed motion to suppress the blood test, arguing the Kansas implied consent law was unconstitutionally coercive. District court denied the motion. In bench trial on a conditioned stipulation of facts to be used for consideration of motion to suppress or as necessary to preserve Braun’s arguments about the motion, district court convicted Braun of DUI under K.S.A. 2012 Supp. 8-1567(a)(2). Journal entry did not mention the alternative charge. Braun appealed the district court’s denial of the motion to suppress. In unpublished opinion the Court of Appeals affirmed Braun’s conviction. Panel found the district court should have suppressed the blood test result but that error was harmless because there was sufficient evidence in the stipulated facts to establish that Braun committed the alternative charge of DUI under K.S.A. 2012 8-1567(a)(3). Braun’s petition for review granted on sole issue of whether panel erred in finding harmless error.

ISSUE: Stipulated facts in support of conviction on alternative charge

HELD: Braun’s conviction is reversed. Parties can agree to conditions that limit the circumstances where stipulated facts can be used, and a court is bound by any such conditions or limitations. Here the purpose of the stipulation was solely to determine the issue of law arising from Braun’s motion to suppress, and also conveyed that the facts would not be binding if an appellate court determined that a conviction based on K.S.A. 2012 Supp. 8-1567(a)(2) was not valid. Panel erred by not considering and applying the conditions that limited the binding nature of the parties’ stipulation. District court’s judgment is reversed and case is remanded for further proceedings related only to the alternative count of DUI under K.S.A. 2012 Supp. 8-1567(a)(2).

STATUTES: K.S.A. 2019 Supp. 60-261; K.S.A. 2012 Supp. 8-1001(k), -1567(a)(2), -1567(a)(3)

constitutional law—criminal law—criminal procedure—motions—sentencing—statutes
state v. Juarez
lyon district court—affirmed; court of appeals—affirmed
no. 118,543—august 28, 2020

FACTS: Juarez entered plea to aggravated battery of prison guard. District court found Juarez guilty but did not notify him of obligation to register as a violent offender under Kansas Offender Registration Act (KORA), and KORA did not list aggravated battery as a crime that automatically required registration. Juarez remained confined until sentencing hearing six weeks later. At sentencing, district court exercised its discretion to require Juarez to register as a violent offender under KORA. Juarez objected to lack of notice to register but offered no evidence on the issue. Sentencing continued to address restitution. Juarez again objected to lack of notice but again offered no evidence and asked for no additional time to present evidence. Three weeks later, sentence became final upon restitution order. Juarez appealed. Court of Appeals affirmed in unpublished opinion, relying on State v. Marinelli, 307 Kan. 768 (2018). Sole issue on review is whether the notice provided by the district court violated Juarez’ right to due process.

ISSUE: Due process—notice of obligation to register as violent offender

HELD: Validity of the district court’s registration order is not challenged and is presumed valid. District court’s failure to provide timely notice of Juarez’s obligation under K.S.A. 2019 Supp. 22-4904(a)(1)(A) did not constitute a denial of procedural due process because Juarez failed to demonstrate prejudice. He neither presented additional evidence nor asked for the opportunity to do so with respect to district court’s exercise of discretion to order registration, and he remained incarcerated with no responsibility to register between the time the district court should have provided notice and the time it actually did so.  

CONCURRENCE (Biles, J.): Concurs with the result but believes Marinelli controls disposition. District court’s timing error does not excuse the registration obligation, and Juarez did not show any prejudice.

CONCURRENCE (Stegall, J.): Concurs that Juarez’ due process rights were not violated, but does so because district court’s registration order was not valid. Based on State v. Thomas, 307 Kan. 733 (2018), once Juarez was convicted the district court lost its opportunity to create the necessary precondition for a registration obligation to spring into existence through judicial fact-finding. When a district court does not make the necessary fact-finding at time of conviction - and the notice is not given - no process has been denied because the defendant is not an offender required to register under KORA.

DISSENT (Rosen, J.)(joined by Beier, J.): Would find Juarez’ due process rights were violated. Stands by his dissents in previous cases that KORA is punitive in effect, and thus is a consequence of Juarez’ plea. Marinelli is distinguished. Here, Juarez plead no contest to a crime while completely unaware the court would later require him to register under KORA, and he was never offered the opportunity to withdraw that plea by demonstrating good cause (pre-sentencing motion) instead of having to show manifest injustice (post-sentencing motion.  

STATUTES: K.S.A. 2019 Supp. 21-5413(b)(2)(A), 22-4901 et seq., -4902(e)(1), -4902(a)(5),  -4904(a)(1)(A); K.S.A. 22-4902, -4905

appeals—appellate procedure—criminal law—statutes
state v. Lindemuth
shawnee district court—reversed and remanded; court of appeals—affirmed
No. 116,937—august 28, 2020

FACTS: Jury convicted Lindemuth of one count of criminal threat, K.S.A. 2019 Supp. 21-5415(a)(1). Court of Appeals reversed, holding trial court erred by rejecting proposed jury instruction on workplace defense. 55 Kan.App.2d 419 (2018). State sought review of panel’s decision on factual appropriateness of the workplace defense instruction. Days prior to oral argument, State v. Boettger, 310 Kan. 880 (2019) and State v. Johnson, 310 Kan. 835 (2019), held the provision in K.S.A. 2019 Supp. 21-5415(a)(1), allowing a conviction if a threat of violence is made in reckless disregard for causing fear, is unconstitutionally overbroad. Lindemuth filed Supreme Court Rule 6.09 letter arguing his appeal was affected and requesting reversal of his conviction as in Johnson. Supplemental briefing ordered.

ISSUE: Change of law—constitutional error

HELD: Panel’s judgment is affirmed as right for the wrong reason. Lindemuth’s conviction cannot stand after Johnson, regardless of outcome on State’s issue for review. Like Johnson, the trial record provides no basis for court to discern whether jury concluded the State had proved beyond a reasonable doubt that Lindemuth committed criminal threat intentionally, and court cannot conclude the State met its burden of showing the constitutional error was harmless. District court’s judgment is reversed and case is remanded with directions.

DISSENT (Biles, J.)(joined by Stegall, J.): Would find the constitutional error harmless under the rationale in Justice Stegall’s dissenting opinion in Johnson, and would keep the case to reach the instructional error claim.

DISSENT (Rosen, J.): Would find the constitutional error harmless. While there was strong evidence supporting intentional conduct in Johnson, he agreed with majority that there was also evidence of recklessness.  Here he sees no evidence of recklessness where Lindemuth simply denied making any threatening statements.

STATUTE: K.S.A. 2019 Supp. 21-5202(h), -5202(j), -5223(a), -5415(a)(1)

 

Kansas Court of Appeals

criminal

appeals—criminal procedure - sentencing
state v. Dominguez
sedgwick district court - reversed and remanded
no. 121,618—august 28, 2020

FACTS: Dominguez sentenced in August 2017 to prison term and granted probation for 24 months. In October 2017 district court found probation violation and imposed three-day quick dip jail sanction. A September 2018 warrant issued for six probation violations. At a July 10, 2019, hearing district court revoked probation, applying the July 1, 2019, amendment to the intermediate sanctioning scheme which removed the requirement for a 120-day or 180-day sanction before revocation could be ordered. Dominguez appealed, arguing for first time that district court should have applied either the law in effect at time of her 2018 probation violations or the law in effect when she committed her 2017 crimes of conviction.

ISSUE: Revocation of probation—K.S.A. 2019 Supp. 22-3716

HELD: Following the reasoning in State v. Coleman 311 Kan. 332 (2020), and finding unpublished Court of Appeals’ opinions on the same issue persuasive, court holds the 2019 amendment to the intermediate sanctioning scheme at K.S.A. 22-3716 does not apply retroactively to probation violators whose crimes were committed before the effective date of the amendment.  State’s reliance on State v. Tearney, 57 Kan.App.2d 601 (2019), is misplaced.  Reversed and remanded for new dispositional hearing. District court must impose either a 120-day or 180-day prison sanction before revoking Dominguez’ probation unless the court finds a valid statutory ground to circumvent further intermediate sanctions.

STATUTES: K.S.A. 2019 Supp. 21-6810(e), 22-3716, -3716(c), -3716(c)(1)(C), -3716(c)(10);  K.S.A. 2018 Supp. 22-3716(c)(1)(A)-(D); K.S.A. 2017 Supp. 22-3716(c)(9)(B), -3716(c)(12); K.S.A. 2016 Supp. 22-3716(c); K.S.A. 22-3716

Tags:  appeals  appellate procedure  constitutional law  contracts  criminal law  criminal procedure  disbarment  Ellis District Court  evidence  Lyon District Court  motions  Sedgwick District Court  sentencing  Shawnee District Court  statutes 

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July 21, 2020 Digests

Posted By Administration, Monday, August 24, 2020

Kansas Supreme Court

criminal

constitutional law—criminal procedure—evidence—jury instructions
state v. green
Montgomery District Court—affirmed
no. 118,366—August 21, 2020

FACTS: For offenses related to the killing of Green’s ex-wife’s boyfriend, a jury convicted Green of first-degree premeditated murder, aggravated burglary, and arson. On appeal he claimed: (1) district judge should have instructed jury on defense of voluntary intoxication; (2) district judge should instructed jury on lesser included offense of voluntary manslaughter; (3) district judge’s failure to give those two instructions deprived Green of his constitutional right to a jury trial; (4) the failure to instruct on voluntary manslaughter pushed jury to convict on first-degree premeditated murder even if jurors had reasonable doubt that State had proved its case; (5) district judge erred in admitting into evidence a videotaped interrogation of Green because officers repeatedly challenged his honesty and truthfulness during that interrogation; (6) district judge erred in refusing to give cautionary instruction about testimony from jailhouse informants; and (7) cumulative error denied him a fair trial.

ISSUES: (1) Jury instruction—voluntary intoxication; (2) jury instruction—voluntary manslaughter; (3) right to a jury trial; (4) constitutional right to due process; (5) evidence—videotaped statements; (6) cautionary instruction on informant testimony; (7) cumulative error

HELD: Under facts in case, an instruction on voluntary intoxication was not factually appropriate. No evidence of impairment that would prevent the formation of the necessary criminal intent. Instead, Green relies on evidence of his intoxication before and after the crime.

            District judge correctly denied Green’s request for a voluntary manslaughter instruction. No evidence that the sleeping victim did anything as Green entered his house that could be characterized as provocation.

            District judge’s failure to instruct jury on voluntary intoxication and voluntary manslaughter did not violate Green’s constitutional claim of being denied right to a jury trial where no evidence supported Green’s requests for those instructions.

            Green’s argument for extending Beck v. Alabama, 447 U.S. 625 (1980), to noncapital cases is rejected. Under facts in case, no error under Beck’s letter or its spirit.

            Green’s challenge to the admission of videotaped statements he made during police interview, raised for the first time on appeal, is not considered. Even if error to not redact the interviewers’ comments on credibility, the error would be far from dispositive. Court finds no established exception to the preservation problem, and notes this case is a poster child for adherence to the contemporaneous rule.

            District judge did not err in denying Green’s request for a cautionary instruction on informant testimony. Neither jailhouse informant was acting as an agent for the State when the informant first received incriminating information from Green, and multiple witnesses and other evidence corroborated each informant’s testimony.

            Cumulative error doctrine not applicable where there is no error or only a single error.

CONCURRENCE (Rosen, J.)(joined by Stegall, J.): Agrees that a voluntary intoxication instruction was not factually appropriate because there was no evidence indicating Green was impaired at the time of the crime. Disagrees with that portion of majority’s decision to the extent it implies the presence of any evidence, however slight, mandates the district court to instruct and skip the gatekeeping test required in the affirmative defense statute

STATUTES: K.S.A. 2019 Supp. 21-5108(c), 60-261; K.S.A. 2018 Supp. 21-5205(b), -5404(a)(1); K.S.A. 60-404, -455, -1507

constitutional law—criminal law—criminal procedure—
evidence—prosecutors—statutes
state v. moore
reno district court—affirmed
no. 121,040—august 21, 2020

FACTS: Moore was convicted of first-degree premeditated murder. The trial judge allowed State to introduce incriminating statements Moore made during police interview, finding Moore made no unequivocal request for counsel. Trial judge also denied Moore’s request for voluntary intoxication instructions on first-degree premeditated murder and lesser-included crime of intentional second-degree murder. On appeal Moore claimed: (1) district judge should have suppressed evidence of his incriminating statements; (2) it was error to refuse to give voluntary intoxication instructions; (3) prosecutor committed error in closing argument; and (4) cumulative error denied him a fair trial.

ISSUES: (1) Motion to suppress; (2) voluntary intoxication jury instruction; (3) prosecutorial error; (4) cumulative error

HELD: District judge did not err in denying the motion to suppress. Moore’s statement that “Well, I guess it’s lawyer time now then,” considered as a whole and in context, is ambiguous. And his statement ten minutes later that he was “done, all right,” followed by continued talking on his part did not transform his earlier statement into an unambiguous invocation of right to counsel.

            District judge did not err in denying voluntary intoxication instructions. Even assuming such an instruction was legally appropriate, it was not factually appropriate where there was no evidence of impairment negatively affecting Moore’s ability to form the requisite intent.

            No error found in prosecutor’s closing argument by stating that premeditation can be seen from Moore standing there and pulling the trigger over and over again, and by decrying the American tradition of criticizing the police. These statements did not make an equivalent to the forbidden argument that premeditation can be formed instantaneously, and did not appeal to jurors’ passions or prejudices. Prosecutor’s rebuttal statement that Moore may have been eliminating his competition was error because this unsupported speculation on Moore’s motive  argued facts not in evidence. In light of overwhelming evidence against Moore, however, this error was harmless.

            Cumulative error doctrine not applicable where only a single instance of a harmless prosecutorial error found.

CONCURRENCE (Rosen, J.)(joined by Stegall, J.): Agrees that a voluntary intoxication instruction was not factually appropriate because there was no evidence indicating Moore was impaired at the time of the crime. Disagrees with that portion of majority’s discussion on the issue to the extent it relies on State v. Green, __ Kan. __ (this day decided), that finds the presence of any evidence, however slight, mandates the district court to instruct and skip the gatekeeping test required in the affirmative defense statute

STATUTE: K.S.A. 2019 Supp. 21-5108(c), -5205(b)

appeals—constitutional law—criminal law—
criminal procedure—jury instructions—statutes
state v. pattillo
shawnee district court—affirmed
no. 118,941—august 21, 2020

FACTS: Pattillo drove the van in which an occupant fired shots, killing Miller and hitting the residence which was occupied by Miller’s seven-year-old nephew. Jury convicted Pattillo of felony murder, aggravated assault for threatening Miller with a gun, felony discharge of a firearm, and aggravated endangering of a child. On appeal, Pattillo challenged whether the underlying felonies supported the felony-murder conviction, and whether sufficient evidence supported the convictions. He also claimed his convictions for discharge of a firearm and felony murder violated both the Double Jeopardy clause and K.S.A. 2019 Supp. 21-5109(b), and claimed the trial judge erred in instructing the jury.

ISSUES: (1) Underlying felonies—merger doctrine; (2) underlying felonies—sufficiency of the evidence; (3) underlying felonies—multiplicity; (4) multiple convictions and punishments; (5) jury instructions

HELD: Merger doctrine applies to Patillo’s aggravated assault conviction, and under facts in case, the aggravated assault merged with the homicide. If this were the only underlying felony, the felony-murder conviction would be reversed.

            Pursuant to K.S.A. 2019 Sup. 21-5402(c)(1), merger doctrine does not apply to Pattillo’s convictions for aggravated endangering a child and discharge of a firearm at a dwelling, but under facts in case, sufficient evidence supports both underlying felonies. Sufficient circumstantial evidence that Pattillo was aware of the risk to the seven-year-old who lived in the dwelling and consciously disregarded that risk. Statutes for child endangerment and aggravated child endangerment are compared to reject Pattillo’s argument that State was required to prove he knew a child was in the house at the time of the shooting. No language in K.S.A. 2019 Supp. 21-5601(b)(1) or the definition of reckless conduct requires that a person endangering a child must know a child is in danger. State v. Herndon, 52 Kan.App.2d 857 (2016), rev. denied 306 Kan. 1324 (2017), is factually distinguished. Sufficient evidence also supports Pattillo’s conviction for criminal discharge of a firearm at a dwelling, and Miller’s death occurred during the res gestae of the acts of discharging a weapon at a dwelling and of endangering a child.

            Cumulative punishments for both criminal discharge of a firearm and felony murder violate neither the Double Jeopardy Clause nor K.S.A. 2019 Supp. 21-5109. Same elements test in State v. Schoonover, 281 Kan. 453 (2006), is not employed where the legislature has expressed its intent to allow cumulative punishments for felony murder and those underlying felonies that do not merge with the homicide, such as discharge of a firearm at a dwelling. Pattillo can be sentenced for both felony murder and the enhanced punishment for discharging a firearm resulting in great bodily harm.

            No merit to Pattillo’s jury instruction claims. Invited-error doctrine precludes review of Patillo’s claims regarding the felony-murder jury instruction and the criminal discharge instruction. And Pattillo failed to show clear error in district judge’s failure to instruct jury on the lesser-included offenses of criminal discharge or of endangering a child.

STATUTE: K.S.A. 2019 Supp. 21-5109, -5109(b), -5109(b)(1), -5109(b)(2) -5202(j), -5402(a)(2), -5402(c), -5402(c)(1)(S),  -5402(c)(2), -5402(c)(2)(D), -5601(a), -5601(b)(1), -5601(c)(1), -6308, -6308(a)(1)(A), -6308(a)(3)(B), -6308(b), -6308(b)(1)(A), -6308(b)(1)(B), 22-3414(3)

K.S.A. 2015 Supp. 21-5402(c)(1)(O), -5402(c)(1)(S) -5601(b)(1). -6308(a)(1)(A)

 

Kansas Court of Appeals

CRIMINAL

EVIDENCE—JOINDER—PRIOR CRIMES
STATE V. BROWN
SALINE DISTRICT COURT—REVERSED AND REMANDED
NO. 119,460—AUGUST 21, 2020

FACTS: In 2015 Brown was charged with three counts of rape and one count of aggravated indecent liberties for crimes involving his stepdaughter, K.N. While he was in custody, Brown wrote both K.N. and A.N., the victim's mother and his long-time companion. The contents of the letters caused the State to charge him with one count each of intimidation of a victim and a witness. Over Brown's objections, the information was consolidated for one trial. After a jury trial, Brown was convicted of all charges except for intimidation of a victim. He appealed.

ISSUES: (1) Admission in evidence of prior acts of domestic violence; (2) consolidation of information for one trial; (3) denials of motions for mistrial

HELD: At trial, the district court admitted evidence that Brown significantly damaged property at the home during arguments with A.N. The evidence was ostensibly admitted to prove why K.N. would be fearful to disclose the sexual abuse, even though the evidence showed that K.N. did not witness these events. There was extensive testimony at trial about these domestic violence events. Although the prior-crimes evidence was relevant and material, its probative value was diminished given the lengthy timelines over which the abuse occurred and the undisputed fact that K.N. did not witness the behavior. And the State never asked K.N. at trial if her failure to report was due, at least in part, to Brown's violent tendencies. The exhaustive testimony about Brown's prior crimes, the diminished probative value of the evidence, and the fact that the State could have proven the same thing with less prejudicial evidence, results in the conclusion that the district court erred by admitting the evidence. This error cannot be considered harmless and the case must be remanded for a new trial. It is undisputed that the State established the legal requirements to consolidate all charges. The letters to A.N. and K.N. put Brown's character into dispute that prejudiced him with the jury, all for little probative value. The district court erred by consolidating these cases for trial. There is no need to review errors in the district court's rulings on Brown's motions for mistrial. This case has already been reversed for two new trials.

STATUTE: K.S.A. 22-3202, -3303, 60-447(b), -455, -455(a), -455(b),

Tags:  appeals  constitutional law  criminal law  criminal procedure  evidence  joinder  jury instructions  prior crimes  prosecutors  statutes 

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July 2, 2020 Digests

Posted By Administration, Monday, July 6, 2020

Kansas Supreme Court

Civil

TORTS
HAMMOND V. SAN LO LEYTE VFW POST #7515
CLOUD DISTRICT COURT—COURT OF APPEALS IS AFFIRMED,
DISTRICT COURT IS REVERSED, CASE REMANDED
NO. 118,698—JULY 2, 2020

FACTS: Jeffrey Hammond and his wife went to the San Lo Leyte VFW Post #7515. While at the VFW, Hammond encountered Travis Blackwood. The two men argued and Blackwood allegedly threatened to beat up Hammond in the bathroom. Hammond disengaged and returned to his table. Shortly thereafter, the manager of the VFW told Hammond that he needed to leave immediately and that he was banned from the club. The manager was backed up by Blackwood and his friends, who helped escort Hammond from the bar. As soon as the manager went back inside the bar, Blackwood and his friends physically assaulted Hammond. Hammond sued the VFW, but the district court granted summary judgment in favor of the VFW. The court of appeals reversed, finding that summary judgment was inappropriate. The VFW's petition for review was granted.

ISSUE: (1) Whether VFW owed a duty to Hammond

HELD: Kansas generally follows the Restatement (Second) of Torts § 344 regarding the scope of liability of owner/operators of commercial enterprises when it comes to acts of third persons. In order to be liable, the owner need not directly witness a physical altercation. Instead, a totality of the circumstances test is used to look at factors in addition to a prior attack. By granting summary judgment, the district court cut off analysis of whether an attack such as the one Hammond suffered was foreseeable. The VFW owed Hammond a duty to protect him from the dangerous acts of other bar patrons. Questions that must be answered on remand include whether Hammond's injury was foreseeable and whether the VFW breached its duty to Hammond.

STATUTES: No statutes cited.

criminal 

appeals—constitutional law—criminal procedure—motions—sentencing—statutes
state v. bradford
dickinson district court—affirmed
no. 120,683—july 2, 2020

FACTS: Bradford’s conviction on charges of capital murder, aggravated robbery, aggravated burglary, and felony theft resulted in 2003 resentencing for capital murder and the grid crimes. District court denied Bradford’s 2018 motion to correct an illegal sentence in which Bradford challenged his hard 40 sentence for capital murder. On appeal he argued for first time that the original and resentencing courts improperly classified his prior Missouri burglary convictions as person felonies, citing State v. Wetrich, 307 Kan. 552 (2018).

ISSUE: (1) Motion to correct an illegal sentence

HELD: Bryant’s arguments fail because his sentence was not illegal when imposed. Under State v. Murdock, 309 Kan. 585 (2019)(Murdock II), State v. Weber, 309 Kan. 1203 (2019), and State v. Bryant, 310 Kan. 920 (2019), Bradford failed to establish the district court imposed an illegal sentence for purposes of K.S.A. 22-3504.

STATUTES: K.S.A. 2019 Supp. 21-6804, 22-3504(a), -3504(c)(1), -3504(c)(2), -3504(d), -3601(b)(3); K.S.A. 2018 Supp. 21-6811(e)(3), 22-3504(1), -3504(3); K.S.A. 21-3715, -3716, -4704, -4711(e), 22-3504; K.S.A. 21-4701 et seq., -4711(e) (Furse 1995)

appeals—criminal procedure—evidence—jury instructions—statutes
state v. gibson
riley district court—affirmed in part, vacated in part
no. 119,993—july 2, 2020

FACTS: State charged Gibson with first-degree felony murder and child abuse. A defense-hired psychologist (Dr. Steffen) interviewed Gibson and gave his report to a defense pathologist and to the State. Based on K.S.A. 60-437(b), district court held there was a knowing and voluntary waiver of privilege and allowed Dr. Steffen to testify about a statement Gibson made during the interview. Jury convicted Gibson as charged. Sentence imposed included hard 25 sentence for felony murder, consecutive 34-month prison term for child abuse, and lifetime postrelease supervision. On appeal Gibson claimed: (1) trial court erroneously held that Gibson waived a privileged communication with Dr. Steffen; (2) there was insufficient evidence that Gibson’s action was knowingly done and cruel; (3) use of “should” in jury instruction on State’s burden of proof discouraged jury from exercising its nullification power; and (4) cumulative error denied him a fair trial. He also claimed the sentencing court improperly imposed lifetime postrelease supervision instead of lifetime parole.

ISSUES: (1) Psychologist-client privilege waiver; (2) sufficiency of the evidence; (3) jury instruction—burden of proof; (4) cumulative error, (5) sentencing

HELD: District court did not err by allowing Dr. Steffen to testify to Gibson’s statement made during the interview. As to privilege issue, K.S.A. 74-5323(a)(communications with licensed psychologist) applies to this case, not K.S.A. 65-5810(a)-(b)(communications with licensed professional counselors). As to waiver, Gibson’s reliance on State v. Foster,  259 Kan. 198 (1996), is flawed and Foster is distinguished. District court’s ruling based on K.S.A. 60-437 is not challenged, and Gibson’s challenge under K.S.A. 2019 Supp. 60-426a(a), raised for first time on appeal, was not preserved.

            Totality of Gibson’s statements combined with other circumstantial evidence was sufficient to establish the required mental state element that Gibson’s action was knowingly done and cruel as required by K.S.A. 2019 Supp. 21-5602(a)(3).

            As held in State v. Patterson, 311 Kan. 59 (2020), it is not a misstatement of law to tell a jury “If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.”

            No trial errors found for application of the cumulative error doctrine.

            District court had no authority to order a term of lifetime postrelase supervision along with an off-grid, indeterminate life sentence. That portion of Gibson’s sentence is vacated.

STATUTES: K.S.A. 2019 Supp. 21-5202(i), -5402(a)(2), -5602(a)(3), 22-3212(c)(2), 60-426a(a); K.S.A. 22-3219(2), 60-437, -437(b), 65-5802(b), -5810, -5810(a), -5810(b), 74-5323, -5323(a)

constitutional law—criminal procedure—double jeopardy—jury instructions— trials
state v. kornelson
reno district court—affirmed; court of appeals—affirmed
no. 118,091—july 2, 2020

FACTS: State charged Kornelson in part with felony driving under the influence (DUI), under alternative theories of driving with excessive blood or breath alcohol concentration, and driving while incapable of safely operating a vehicle because of alcohol impairment. First trial ended when court declared a mistrial without objection from State or Kornelson when jury reported a deadlock on the DUI charge. Second jury convicted Kornelson on both DUI theories and on an open container charge. On appeal, Kornelson claimed for first time that the second trial violated his right against double jeopardy because the record did not reflect a “manifest necessity” for the mistrial. He also claimed the jury instruction on State’s burden of proof improperly discouraged jury from exercising its nullification power. Court of appeals affirmed in unpublished opinion, finding Kornelson failed to show that prosecutorial conduct “goaded” him into not objecting to the mistrial.  Review granted.

ISSUES: (1) Double jeopardy; (2) jury instruction—burden of proof

HELD: The second trial did not violate Kornelson’s double jeopardy rights. If a district court declares a jury deadlocked and orders a mistrial when the defendant does not object or consent to the mistrial, a retrial should be permitted only when there was a manifest necessity for the court’s action. Contrary holding in State v. Graham, 277 Kan. 121 (2004), is overruled. Given the circumstances in this case, coupled with the deference and discretion Kansas caselaw affords the trial judge making these decisions, the record supports the determination that the jury was deadlocked under the manifest necessity standard.

            As held in  State v. Patterson, 311 Kan. 59 (2020), it is not a misstatement of law to tell a jury “If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.         

STATUTES: K.S.A. 2019 Supp. 8-1017(a)(4), -1567(a)(2), -1567(a)(3). -1599(b); K.S.A. 20-3018(b), 60-2101(b)

Tags:  Appeals  Cloud District Court  Constitutional Law  Criminal Procedure  Dickinson District Court  Double Jeopardy  Evidence  Jury Instructions  Motions  Reno District Court  Riley District Court  Sentencing  Statutes  Torts  Trials 

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June 26, 2020 Digests

Posted By Administration, Monday, June 29, 2020

Kansas Supreme Court

Civil

PUBLIC DUTY—TORTS
MONTGOMERY V. SALEH
SHAWNEE DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED IN PART, REVERSED IN PART
NO. 117,518—JUNE 26, 2020

FACTS: Trooper Saleh initiated a traffic stop when he was informed that a passenger in the vehicle had a knife and was acting erratically. The driver rapidly accelerated and drove recklessly, running stop signs and red lights while his speed reached near 100 miles per hour. Saleh decided to stop pursuit, but not before the driver ran a red light and hit a pickup truck, injuring Montgomery and another individual named Bennett. The plaintiffs filed separate petitions alleging that Saleh was negligent and that the State was liable for his actions. The State moved for summary judgment, arguing that even if the plaintiffs could prove negligence there was no duty owed by Saleh under the public duty doctrine. The district court granted the motion, rejecting application of both the public duty doctrine and Kansas Tort Claims Act immunity. But the district court ruled the plaintiffs failed to proffer evidence sufficient to support a finding of causation in fact. The Court of Appeals affirmed the district court's findings on immunity and the public duty doctrine but remanded the case for further action on proof of causation. The Supreme Court granted Trooper Saleh and the State's petition for review.

ISSUES: (1) Application of the public duty doctrine; (2) breach; (3) causation; (4) immunity

HELD: The plain language of K.S.A. 8-1506 required emergency vehicle drivers to "drive with due regard for the safety of all persons." This language shows that the legislature did not intend to exempt emergency vehicle drivers from the consequences of reckless conduct. This statute imposes a specific duty on law enforcement and individuals may sue if they believe this duty has been breached. In order to prevail, the plaintiffs must prove that Saleh acted with reckless disregard for the safety of others. The evidence presented to the district court showed there is a material issue of fact as to whether Saleh exhibited reckless disregard when continuing to pursue the fleeing driver. Law enforcement's conduct during a pursuit can be the legal cause of a third party's injuries. Given the evidence presented to the district court, a jury could have found that the driver knew he was being pursued by Saleh. Because there is a statutory duty created by K.S.A. 8-1506(d), the discretionary function exception does not apply to Saleh's pursuit of the fleeing driver.

DISSENT: (Rosen, J., joined by Stegall, J., and Green, J., assigned) Justice Rosen would reverse the Court of Appeals and affirm the district court's grant of summary judgment, holding that the plaintiffs failed to establish a prima facie case that Saleh breached his duty of care under K.S.A. 8-1506.

STATUTE: K.S.A. 8-1506, -1506(d), 75-6101(b), -6103(a), -6104, -6104(e), -6104(n)

CONTRACTS
RUSSELL V. TREANOR INVESTMENTS
DOUGLAS DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED
NO. 117,973—JUNE 26, 2020

FACTS: In 1997, the owner of two adjacent properties executed and recorded an Operation and Easement Agreement. The OEA restricted the building size and prohibited either property from being used as a regular grocery store. The OEA allowed for amendment if all of the current owners agreed in writing, and the OEA was amended to alter the original site plan. The amendment allowed for the creation of a multi-unit buildings with condominiums and retail space; Russell purchased a unit in the building in 2010. Treanor Investments purchased part of the property covered by the OEA in 2015, with hopes to amend the OEA and enlarge the property footprint to encompass a grocery store. Russell filed suit, claiming the OEA could not be amended without condominium owner consent. The parties filed competing motions for summary judgment and the district court agreed with Treanor, finding that it had been designated as the responsible owner, who had authority to act on behalf of other owners. The Court of Appeals affirmed, finding that the OEA and its amendments were clear and unambiguous in allowing the responsible owner to act on others' behalf. Russell's petition for review was granted.

ISSUES: (1) Authority to amend the OEA; (2) can amendment materially change the character of the real estate

HELD: The language of the OEA is plain and unambiguous, and it allows for the designation of a responsible owner to act on others' behalf. This language existed before Russell purchased his condominium. Nothing in the language prevents the responsible owner from further amending the OEA to alter size and use restrictions. Russell failed to raise a genuine issue of material fact about whether the proposed changes to the property would cause a material change in circumstances.

STATUTES: No statutes cited.

criminal

appeals—constitutional law—criminal law—criminal procedure—evidence 
state v. George
finney district court—affirmed
no. 120,190—june 26, 2020

FACTS: George convicted of first-degree murder, attempted distribution of a controlled substance, attempted aggravated robbery, aggravated assault, and criminal possession of a firearm. He appealed claiming: (1) his convictions were multiplicitous, arguing three of his convictions “folded” into one another and became a single offense; (2) prosecutorial error during cross-examination of a witness by commenting on the witness’ credibility; (3) trial court erred by allowing a witness to invoke Fifth Amendment and refuse to testify where the witness had been convicted and sentenced but his appeal was still pending; and (4) cumulative error denied him a fair trial.

ISSUES: (1) Multiplicity; (2) prosecutorial error; (3) invocation of Fifth Amendment; (4) cumulative error

HELD: George’s convictions are not multiplicitous. Elements of each of three crimes arising from the same conduct but grounded in three different statutes are examined, finding: attempted aggravated robbery and aggravated assault are not multiplicitous; attempted distribution or possession with intent to distribute a controlled substance and attempted aggravated robbery are not multiplicitous; and attempted distribution or possession with intent to distribute a controlled substance is not multiplicitous with aggravated assault.

            George failed to preserve his evidentiary claim and cannot evade the contemporaneous objection requirement demanded by K.S.A. 60-404 by reframing the issue as one of prosecutorial error. Defense counsel objected to the State’s cross-examination question as going “beyond the scope” of direct examination, but did not argue any grounds relating to impeachment or character evidence. This was insufficient for appellate review of the issue now claimed.

            Error resulting from district court’s exclusion of a witness’ testimony, if any, was harmless. Court declines to decide whether a plea of nolo contendere waives the privilege against self-incrimination after sentencing but before the conclusion of direct appeals. Even if error is assumed in this case, the error is harmless because the substance of this witness’ proffered testimony was entirely presented at trial through the testimony of a detective.

            Cumulative error doctrine does not apply in case having only one assumed error.

STATUTES: K.S.A. 2019 Supp. 21-5301, -5301(a), -5412(a), -5412(b)(1), -5420, -5420(a), -5420(b), -5705(a)(1), -5705(d)(3)(C), 22-3601(b)(4), 60-261; K.S.A. 60-404, -422(c)

criminal procedure—evidence—sentencing—statutes
state v. satchell
sedgwick district court—affirmed in part and vacated in part
court of appeals—affirmed in part and reversed in part
no. 116,151—june 26, 2020

FACTS: Satchell charged with 2014 sexual offenses involving two children. To show his propensity to sexually abuse children, State was allowed to present evidence under K.S.A. 2019 Supp. 60-455(d) about Satchell’s 2010 abuse of three other children under similar circumstances. Jury convicted Satchell on all counts. Sentencing court ordered consecutive “hard 25” sentences for the eight off-grid offenses, followed by 100 months in prison for criminal sodomy. Court also ordered lifetime parole for the off-grid offenses and lifetime postrelease supervision for the on-grid offense. On appeal, Satchell claimed in part the district should not have allowed the 60-455 evidence because it was unduly prejudicial, and argued he should not have been given lifetime postrelease supervision. In unpublished opinion, Court of Appeals rejected both claims. Review granted

ISSUES: (1) K.S.A. 60-455 evidence; (2) sentencing

HELD: District court did not abuse its discretion by admitting evidence of the 2010 allegations. The 2010 evidence, if true, would be relevant. At issue is whether the probative value of this evidence was substantially outweighed by the risk of unfair prejudice. Factors in State v. Boysaw, 309 Kan. 526 (2019), to be considered in determining probative value and undue prejudice are analyzed on facts in this case. In balancing those factors, the district court can exclude otherwise admissible relevant evidence if its probative value is “substantially outweighed” by the risk of undue prejudice. Court acknowledges criticism of past decisions that have left out the term “substantially,” but finds the proper test has been applied despite the occasional shorthand references. Here, the risks of undue prejudice did not substantially outweigh the high probative value of the 2010 evidence.

            District court erred by ordering lifetime postrelease supervision. Under K.S.A. 2016 Supp. 21-6819, in effect at the time of Satchell’s offenses, the proper post release supervision term is lifetime parole when the district court imposed consecutive on-grid and off-grid sentences. The lifetime postrelease supervision portion of Satchell’s sentence is vacated. 

STATUTES: K.S.A. 2019 Supp. 60-455(d); K.S.A. 2016 Supp. 21-6627, -6819, -6819(b)(2), 22-3717, -3717(d)(1)(G), -3717(u); K.S.A. 60-406, -407(f), -445

 

Kansas Court of Appeals

Civil

AGENCY ACTION—MEDICAL EXPENSES
UNIVERSITY OF KANSAS HOSPITAL AUTHORITY V. BOARD OF COUNTY COMMISSIONERS OF FRANKLIN COUNTY, KANSAS
WYANDOTTE DISTRICT COURT—AFFIRMED IN PART, REVERSED IN PART, REMANDED
NO. 120,472—JUNE 26, 2020

FACTS: After seeing a man driving without headlights and with a suspended license, Ottawa police engaged in a high-speed chase. Officers lost track of the vehicle, and by the time they found it, the driver had crashed and the vehicle was fully engulfed in flames. Rescue personnel found the driver on the ground, suffering from severe injuries. Officers did not search the driver, and he was not placed under arrest, although a hold was placed while the man was in the hospital. After his release, the driver was taken to jail based on outstanding warrants that were unrelated to the police chase. After an investigation, the driver was charged with felony fleeing and eluding. The University of Kansas Hospital Authority filed suit against the City of Ottawa and the Franklin County Board of County Commissioners in an attempt to recoup some of the man's considerable medical bills. All parties filed motions for summary judgment. After considering arguments, the district court found that the driver was in the City's custody when medical treatment was initiated. But for the driver's injuries, he would have been arrested when the chase ended. The district court granted summary judgment in the Hospital's favor against the City but found that the County was not involved enough to be responsible for bills. The City appealed and the Hospital cross-appealed.

ISSUES: (1) Whether the driver was in custody; (2) existence of disputed material facts

HELD:  "Custody" has a broad definition. A formal arrest is not always necessary to show that a person is in custody. It is undisputed that County deputies did not witness any crimes being committed and did not participate in the chase. This means it is also undisputed that the driver was not in County custody when medical care was sought, and the County has no obligation to contribute to the driver's medical bills. There are lingering fact questions, though, about whether the driver was in the City's custody. Specifically, there was no stipulation that the driver was stopped by law enforcement, triggering the statutory obligation to take him into custody. Because there is a lingering fact question, summary judgment was not appropriate. The case must be remanded to clear up these issues.

STATUTE: K.S.A. 2019 Supp. 8-1568(b), -1568(c), 22-2202(d), -2202(i), -4612, -4612(a)

CONTRACTS—OIL AND GAS
THOROUGHBRED ASSOCIATES V. KANSAS CITY ROYALTY COMPANY
COMANCHE DISTRICT COURT—AFFIRMED IN PART, REVERSED IN PART, REMANDED
NO. 120,068—JUNE 26, 2020

FACTS: Beginning in 1997, Thoroughbred acquired oil and gas leases. After it struck a big well, Thoroughbred acquired leases on nearby property to prevent competition. However, there was a 1/3 mineral interest in one of these tracts which remained unleased. In an attempt to acquire that lease, Thoroughbred contacted the owner, Oxy USA Inc., about selling. The parties signed a lease in 1998 which allowed Thoroughbred to unitize the lease. The lease would continue for as long as Thoroughbred produced oil or gas in paying quantities, either from the tract or from the unit as a whole. Oxy had a 3/16 royalty on production from the tract. In 1999, Oxy sold its interest in the lease to KC Royalty. Tensions arose when KC Royalty believed that gas from the unit was being drained into another unit that was not covered by KC Royalty's lease and that KC Royalty believed that Thoroughbred owed it unpaid royalties. After extensive litigation and another appeal which was heard by the Kansas Supreme Court, the parties ended up back in district court. That court ruled in favor of KC Royalty, finding that the parties agreed to unitize the Lease, that KC Royalty had waived certain conditions, and that Thoroughbred was equitably estopped from enforcing the conditions. After ruling that all liquids produced in the unit were incidental byproducts of the gas, the court concluded that KC Royalty's interest included all unit production. Both parties appealed.

ISSUES: (1) Whether the parties included the lease in the unit by modification, waiver, or estoppel; (2) award of interest in oil production arising from gas lease; (3) attorney fees

HELD: Substantial evidence supported the district court's finding that the parties modified their lease to include the parcel in the larger unit. This is proven by both Oxy and KC Royalty accepting royalty payments. KC Royalty had the unilateral power to waive conditions and allow Thoroughbred to include the lease in the larger unit. All evidence shows that KC Royalty intended to modify the agreement. Because Thoroughbred represented that KC Royalty's lease was in the unit for over three years, it is estopped from changing its mind now. A portion of the unit included a parcel which was a separate, oil-producing formation where oil production far exceeded gas production. There was no evidence that the oil and gas in this particular parcel was condensate. The district court improperly included this parcel in its royalty calculations, and the case must be remanded for accurate calculations. The district court did not abuse its discretion by denying KC Royalty's motion for attorney fees.

STATUTE: K.S.A. 55-205, -1617

CLASS ACTIONS—OIL AND GAS
COOPER CLARK FOUNDATION V. OXY USA, INC.
GRANT DISTRICT COURT—AFFIRMED
NO. 120,371—JUNE 26, 2020

FACTS: This appeal involves a class-action lawsuit over natural gas leases. After extracting gas, Oxy sent most of it for processing. Cooper, representing the wells included within the class action, disputes the method Oxy was using to calculate royalties for all Class Leases. The class action petition was filed in 2017, alleging that Oxy underpaid royalties from July 2007 through April 2014. Cooper's specific grievances included Oxy passing through processing fees, improperly calculating volume, using the wrong price structure, and not paying interest on conservation fees. The district court certified Cooper's class, and Oxy appealed that certification.

ISSUE: (1) Whether class was properly certified

HELD: Gas produced from Class wells wasn't marketable until it was in a condition suitable for its intended market. This didn't occur until after it was processed. The district court did not abuse its discretion when it found that the class petition raised questions of law and fact that were common to all class members. All of the claims can be litigated classwide without individualized evidence; this includes a dispute over whether Oxy owes interest for conservation fees that were repaid to class members. There are similarly no individualized issues regarding Oxy's statute of limitations defense. The district court rigorously analyzed the requirements for class certification and correctly concluded that the class was appropriate.

STATUTES: K.S.A. 2019 Supp. 60-223, -223(a), -223(b); K.S.A. 16-201, 55-1614, -1615

criminal 

appeals—appellate procedure—constitutional law—criminal procedure— damages—insurance—restitution—sentencing
state v. robinson
lyon district court—affirmed
no. 120,903—june 26, 2020

FACTS: Robinson pled no contest to battery of law enforcement officer. Sentencing included requirement that Robinson pay $2,648.56 in restitution to reimburse workers compensation insurance carrier that paid medical expenses of officer injured as a result of the battery. Robinson appealed claiming the statutes authorizing the district court to order restitution violate Section 5 of Kansas Constitution Bill of Rights by depriving him of right to have a civil jury determine the amount of damages, and violate the Sixth Amendment of U. S. Constitution by allowing a judge to determine the amount of restitution to be awarded the victim. He also claimed district court erred in awarding restitution to be paid to an insurance carrier. State contends the constitutional issues, raised for first time on appeal, were not properly preserved.

ISSUES: (1) Unpreserved claims; (2) restitution—Section 5 of Kansas Constitution Bill of Rights; (3) restitution—Sixth Amendment of U.S. Constitution; (4) payment to insurance carrier

HELD: The issues not raised below are considered because they potentially implicate a claim to the fundamental right to a trial by jury under the Kansas and United States constitutions, and a decision on the merits would serve the ends of justice.

            Robinson failed to establish that Section 5 of the Kansas Constitution Bill of Rights requires that a jury impose criminal restitution under K.S.A. 2017 Supp. 21-6604(b)(1) and K.S.A. 2017 Supp. 21-6607(c)(2). Criminal restitution is not a civil remedy and no provision in the Kansas territorial statutes mentions criminal restitution.

            District court’s restitution order did not violate the Sixth Amendment. Court of Appeals panels have addressed whether Sixth Amendment applies to criminal restitution, and review of one unpublished opinion is currently pending. Under State v. Huff, 50 Kan.App.2d 1094 (2014), rev. denied 302 Kan. 1015 (2015), restitution is not punishment, but even if punishment is assumed, the Kansas statutes do not violate the Sixth Amendment. Huff is consistent with cited  federal and state court opinions, and courts have concluded that Southern Union Co. v. United States, 567 U.S. 343 (2012), does not extend Apprendi and its progeny to restitution. Kansas statutes governing restitution impose neither mandatory minimum amounts nor mandatory maximum amounts, so they do not trigger concerns in Apprendi or Alleyne.

            Neither K.S.A. 2017 Supp. 21-6604(b)(1) nor K.S.A. 2017 Supp. 21-6607(c)(2) prohibit a district court from awarding restitution to an insurance carrier that has suffered damage or injury as a result of the defendant’s crime.

DISSENT (Leben, J.): Would vacate the restitution award because Robinson had a right to have a jury determine the amount of damage or loss he caused any victim of his crime. Text of Sixth Amendment, history, and precedent support a holding that Sixth Amendment applies to restitution. Cases cited by the majority as rejecting the claim that Apprendi applies to restitution are criticized. The two Kansas restitution statutes violate Apprendi by allowing judges to increase the statutory maximum punishment for an offense beyond that authorized by the jury’s verdict or the plea agreement. Even if Robison had no jury-trial right under Sixth Amendment, he had one under Section 5 of Kansas Constitution Bill of Rights.

STATUTES: K.S.A. 2017 Supp. 21-5413(c)(3)(D), -6604, -6604(b)(1), -6604(b)(2), -6607(c)(2), -6608(c)(7), -6613(a), -6613(b), 60-238, -2401, -4304(b); K.S.A. 1991 Supp. 21-6607(c)(2); K.S.A. 60-4301

Tags:  Agency Action  Appeals  Appellate Procedure  Class Actions  Constitutional Law  Contracts  Criminal Procedure  Damages  Evidence  Insurance  Lyon  Medical Expenses  Oil and Gas  Public Duty  Restitution  Sentencing  Statutes  Torts 

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June 19, 2020 Digests

Posted By Administration, Monday, June 22, 2020

Kansas Supreme Court

criminal

appeals—appellate procedure—criminal procedure—motions—sentencing
state v. mayes
johnson district court
court of appeals—dismissal of appeal is affirmed
no. 115,006—june 19, 2020

FACTS: Mayes appealed from district court’s denial of Mayes’ motion to correct an illegal sentence. State moved to dismiss the appeal as moot because Mayes had been released from prison. Court of Appeals in unpublished motion granted State’s motion and dismissed the appeal without reaching merits of Mayes’ illegal sentence claim. Mayes’s petition for review granted. In his petition, he argued in part his appeal was not moot because a corrected criminal history score will affect when he can legally possess a firearm.

ISSUE: (1) Mootness Doctrineexpiration of sentence

HELD: Court of appeals erroneously applied sweeping bright-line rule rejected in State v. Roat, 311 Kan. __ (this day decided), but dismissal of the appeal is affirmed. Mayes failed to preserve below his argument that his appeal was not moot because a decision regarding whether his sentence was illegal will affect when he can legally possess a firearm.

STATUTE: K.S.A. 2010 Supp. 21-3701, -3716

appeals—attorneys and clients—constitutional law—
criminal procedure—jurisdiction—motions—sentencing
state v. roat
sedgwick district court
court of appeals—dismissal of appeal is affirmed
no. 113,531—june 19, 2020

FACTS: Roat was sentenced in 2009 and 2012 using criminal history that classified his 1984 Kansas burglary conviction as a person felony. Alleging classification error in light of State v. Murdock, 299 Kan. 312 (2014), and State v. Dickey, 301 Kan. 1018 (2015), Roat filed motion to correct an illegal sentence, and appealed the district court’s denial of relief. While appeal was pending, State filed notice that Roat had satisfied both the prison and post-release supervision provisions of his sentences. Court of Appeals then ordered Roat to show cause why the appeal should not be dismissed as moot. Roat argued his sentence could impact future sentences, and he might want to pursue a legal malpractice claim against trial attorney for not raising Murdock and Dickey issues at sentencing. Court of Appeals dismissed the appeal in unpublished opinion, holding the expiration of Roat’s sentence meant the outcome of the appeal would have no effect on his sentence in this case. Roat’s petition for review granted.

ISSUE: (1) Mootness Doctrineexpiration of sentence

HELD: Historical basis and application of the mootness doctrine is examined, including Kansas cases approaching mootness as jurisdictional or as discretional policy-based, and the constitutional, jurisdictional concept of mootness in federal cases. Consideration of mootness as a prudential doctrine is held to be the better approach. Bright line rule that renders a sentencing appeal necessarily moot if the sentence is completed is rejected. Instead, a determination of mootness must include an analysis of whether an appellate judgment on the merits would have meaningful consequences for any purpose, including future implications. In this case, State established a prima facie showing of mootness by demonstrating that Roat had fully completed the terms and conditions of his sentence, but Roat failed to demonstrate a vital or substantial right requiring a judgment in this appeal. A legal malpractice claim cannot be grounded on an attorney’s failure to make arguments for a change in the law, even if such a change later takes place, and mere stigma or “rightness” is insufficient to justify continuing to exercise jurisdiction over an appeal. Panel’s summary dismissal of the appeal without application of well-established principle in State v. Montgomery, 295 Kan. 837 (2012), and no reference to Roat’s asserted collateral rights, was erroneous but it arrived at the correct conclusion. Judgment of court of appeals is affirmed, subject to identified reservations. Court notes the 2019 amendment of K.S.A. 22-3504 does not directly invoke or demonstrate mootness of motions, such as Roat’s, that were filed before the amendment.

CONCURRENCE (Biles, J.): Concurs in the result based on rationale stated in State v. Tracy, 311 Kan. __ (this day decided).

CONCURRENCE (Stegall, J.): Joins Justice Biles’ concurrence, but states disagreement with portion of majority opinion that appear to abandon or weaken the constitutional requirement that Kansas courts decide only cases and controversies. Suggests standing (rather than mootness) is the better legal doctrine for future courts to focus on.

STATUTES: K.S.A. 2019 Supp. 22-3504(a), -3504(d), 60-2102(a); K.S.A. 2018 Supp. 21-6813, -6814; K.S.A. 22-3504

appeals—appellate procedure—attorneys and clients—motions
state v. sykes
sedgwick district court
court of appeals—dismissal of appeal is affirmed
no. 113,903—june 19, 2020

FACTS: Sykes appealed the district court’s denial of his motion to correct an illegal sentence based on calculation of Sykes’s criminal history. State moved to dismiss the appeal as moot because Sykes had completed his sentence. Sykes filed no response. Court of appeals granted State’s motion and dismissed the appeal. Sykes petitioned for review, arguing his appeal was not moot because a hypothetical future sentencing court might take judicial notice of Sykes’s criminal history score, and a successful appeal might preserve a legal malpractice claim against his trial counsel.

ISSUE: Mootness doctrineexpiration of sentence

HELD: Panel erred to the extent it considered Sykes’ claim moot based solely on the completion of his sentence, but dismissal of the appeal is affirmed because Sykes failed to challenge the State’s motion for involuntary dismissal of the case as moot.

STATUTES: None

appeals—attorneys and clients—criminal procedure—motions—sentencing
state v. tracy
sedgwick district court
COURT OF APPEALS—dismissal of appeal is affirmed
no. 113,763—june 19, 2020

FACTS: District court revoked Tracy’s probation and denied motion to correct an illegal sentence in which Tracy challenged the classification of his 1974 Colorado burglary conviction as a person offense. In unpublished opinion Court of Appeals held the Colorado conviction was properly classified. Tracy’s petition for review granted but held in abeyance pending resolution of other appeals with related issues. After Tracy fully served his prison sentence and applicable period of postrelease supervision, State argued Tracy’s appeal was moot.

ISSUE: Mootness doctrineexpiration of sentence

HELD: The appeal is moot. No merit to Tracy’s speculative claim that a future sentencing court will feel obligated to follow the panel’s uncorrected ruling and again classify the 1974 Colorado conviction as a person felony. By failing to provide any detail about what he might assert as a basis for the alleged legal malpractice he might want to file, Tracy waived this argument. And under current Kansas caselaw, no merit to Tracy’s claim that the uncorrected panel’s decision could have an impact on other defendants in other cases.

CONCURRENCE (Rosen, J.)(joined by Nuss, C.J. and Malone, J.): Concurs in the result based on rationale expressed in State v. Roat, 311 Kan. __ (this day decided).

STATUTE: K.S.A. 2019 Supp. 21-6813, -6814(c)

appeals—criminal procedure—motions—postconviction relief—sentencing
state v. ward
franklin district court
court of appeals—dismissal of appeal is reversed, case remanded
no. 116,545—june 19, 2020

FACTS: Ward filed motion to correct an illegal sentence, and under K.S.A. 60-1507 to allege district court erred when it revoked Ward’s probation and imposed the underlying sentence. District court summarily denied the motion. Noting that Ward had completed his sentence, Court of Appeals ordered Ward to show cause why the case should not be dismissed as moot under State v. Montgomery, 295 Kan. 837 (2012). In response Ward argued in part that a finding he violated the terms of his probation could be used to deny him probation or subject him to a future upward departure sentence. Panel dismissed the appeal as moot in an unpublished opinion. Ward’s petition for review of panel’s dismissal granted.

ISSUE: (1) Mootness Doctrine—expiration of sentence

HELD: Ward correctly distinguishes Montgomery because he challenges the probation revocation, not just the sanction. Case is remanded to Court of Appeals to reconsider under guidance provided in State v. Roat, 311 Kan. __ (this day decided), the arguments Ward presented in his response to the show cause order.

DISSENT (Biles, J.)(joined by Luckert, C.J. and Stegall, J.): Dissents from remand order based on rationale expressed in State v. Tracy, 311 Kan. __ (this day decided). Case should be dismissed.

STATUTE: K.S.A. 60-1507

appeals—criminal procedure—evidence—sentencing
state v. Yazell
johnson district court
court of appeals—dismissal of appeal is reversed, case is remanded
no. 116,761—june 19, 2020

FACTS: Yazell appealed from revocation of probation following his out-of-state arrest. When State submitted evidence from Kansas Adult Supervised Population Electronic Repository (KASPER) showing Yazell had been released from custody, court of appeals ordered Yazell to show cause why the appeal should not be dismissed as moot. In response Yazell challenged the evidence the State submitted to the appellate courts to show Yazell had competed his sentence, and argued his case was not moot because a finding he violated probation could be used as evidence he is not amenable to probation in future cases. Court of appeals summarily dismissed the appeal as moot. Yazell’s petition for review granted.

ISSUES: (1) Appellate factual findings; (2) mootness doctrineexpiration of sentence

HELD: The reasoned approach by Kansas appellate courts to date has been to reject basing appellate decisions on KASPER and similar documentation. Because KASPER is unreliable evidence, courts may not rely on it to make factual findings. Court of appeals erred to the extent it relied on KASPER and State’s hearsay assertions about a Corrections employee confirming the accuracy of the KASPER report. Panel’s decision is reversed and case is remanded to court of appeals.

            If panel on remand should again find that Yazell has completed his sentence, it should reconsider whether his case is moot under guidance provided in State v. Roat, 311 Kan. __ (this day decided).

STATUTE: K.S.A. 60-409(a)

 

Kansas Court of Appeals

Civil

FAMILY SETTLEMENT AGREEMENT
SCHMITENDORF V. TAYLOR
DOUGLAS DISTRICT COURT—AFFIRMED
NO. 120,123—JUNE 19, 2020

FACTS: Schmitendorf and Taylor were both cousins of Vera Park. In 1993, Park created a revocable trust, designating Park as the trustee. In the event of Park's death, Schmitendorf was to receive 20 percent of the trust estate unless the primary beneficiary predeceased Park, in which case Schmitendorf would receive all the trust estate. After the primary beneficiary died, Park amended the trust so that Schmitendorf and Taylor would evenly split the trust assets. Schmitendorf remained the sole trustee; in that capacity, she used trust assets to purchase a home and made a substantial gift to a community group to establish an endowment in Park's name. Taylor was concerned about Schmitendorf's use of trust assets, and a protracted dispute arose over the trust, a guardian for Park, and alleged financial misappropriation. Ultimately, Schmitendorf and Taylor agreed on terms for a Family Settlement Agreement. The district court approved the Family Settlement Agreement and appointed Schmitendorf and Taylor as co-guardians for Park. Park died in 2016 and Schmitendorf filed a petition contesting the amendment to the trust which established Taylor as a co-equal beneficiary. Taylor sought summary judgment, claiming that all Schmitendorf's claims were controlled by the Family Settlement Agreement. The district court agreed, and Schmitendorf appealed.

ISSUE: (1) Whether dispute is controlled by Family Settlement Agreement

HELD: Kansas law favors the settlement of disputes and family settlement agreements are liberally construed and should not be disturbed without good reason. The plain language of this Family Settlement Agreement clearly determines the parties' interests and their intent to settle all disputes relating to the distribution of trust assets. Under the plain language of the Family Settlement Agreement, Schmitendorf is barred from asserting any claims for relief.

STATUTES: K.S.A. 2019 Supp. 60-256(c)(2); K.S.A. 59-102(8)

Tags:  appeals  appellate procedure  attorneys and clients  constitutional law  criminal procedure  Douglas District Court  Family Settlement Agreement  Franklin District Court  Johnson District Court  jurisdiction  motions  post-conviction relief  Sedgwick District Court  sentencing 

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June 5, 2020 Digests

Posted By Administration, Tuesday, June 9, 2020

Kansas Supreme Court

 

Civil

TRUSTS
IN RE ST. CLAIR TRUST REFORMATION
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 120,050—JUNE 5, 2020

FACTS: Jill St. Clair executed a trust agreement in September 2003. St. Clair's husband, William, was named a life beneficiary of the trust's income. Upon his death, the trust's income would be distributed to Jill and William's children and grandchildren, with the principal eventually being distributed to the grandchildren or their estates. William had previously created his own trust with an identical distribution scheme. Both trusts were funded with identical amounts, and both trusts were prepared by the same attorney. Mr. Davidson drafted the trusts to make sure that the trust assets were not included in either William or Jill's taxable estates. At the time the trust was executed, Jill believed it contained the necessary provisions for the trust assets to be excluded from both taxable estates. Unfortunately, the trust contained a drafting error which resulted in the trusts becoming reciprocal, with the assets of Jill's trust being included in William's estate upon his demise, and vice versa. The trust as written did not accurately express Jill's intent. In order to correct the drafting error, Jill and her trustee petitioned the district court for an order reforming Jill's trust to include provisions which would prevent the trusts from becoming reciprocal. The proposed amendment was served on all beneficiaries, with no objection. The district court ordered that the trust be reformed to correct the scrivener's error.

ISSUE: (1) Whether trust should have been reformed

HELD: The district court's decision was appealed in order to satisfy the requirements of Commissioner v. Estate of Bosch, and the case was transferred from the Kansas Court of Appeals. The record on appeal shows that Jill and the trustee demonstrated by clear and convincing evidence that Jill's intent in creating and funding the trust was adversely affected by a drafting error, making it necessary to reform the trust. Reformation destroys the economic symmetry of the trusts, allowing the trust to be consistent with Jill's original intent. The reformation is affirmed.

STATUTES: K.S.A. 2018 Supp. 20-3017; K.S.A. 58a-415

criminal

appeals—criminal procedure—evidence—juries—verdicts
state v. brown
cowley district court—affirmed; court of appeals—reversed
no. 115,817—june 5, 2020

FACTS: State charged Brown with attempted second-degree intentional murder. District court instructed jury on that charge and the lesser offense of attempted voluntary manslaughter. Verdict form returned by the jury, however, found “the defendant guilty of the lesser offense of attempted involuntary manslaughter as set forth in Instruction No. 7,” an instruction that referred to the correct crime of attempted voluntary manslaughter. This verdict inconsistency was not caught until sentencing, well after jury was discharged. District court sentenced Brown for the instructed crime, attempted voluntary manslaughter. Brown appealed. In unpublished opinion, Court of Appeals reversed and remanded for a new trial on that count, holding the written language of the verdict controlled and district court was powerless to deviate from its literal meaning. Panel in a strikingly similar case held the district court could reasonably interpret the verdict in light of the record. State v. Rice, (2011)(unpublished opinion). State’s petition for review granted to resolve this panel split.

ISSUE: Ambiguous verdict

HELD: Based on Kansas caselaw and persuasive decisions from other jurisdictions, general approach in Rice is correct. Lower court’s decision is reversed with caution. An ambiguous verdict can be reasonably interpreted in light of the charging document, jury instructions, and record as a whole to determine and give effect to jury’s intent. When such intent is clear, a mistaken description of the crime of conviction contained in the verdict form may be discarded as surplusage when the verdict form also refers to the correct charge by pointing back to the charging document or the jury instruction. The strong presumption in favor of the literal text of the jury verdict as the surest guide to jury’s intentions can only be overcome when the record as a whole clearly demonstrates a different intent and district court is convinced beyond a reasonable doubt that portions of the verdict text are inconsistent with that intent. An appellate court’s review of a district court’s application of the surplusage rule is de novo. In this case, district court did not err when it discarded the “in-“ prefix from the verdict form as mere surplusage.

STATUTE: K.S.A. 22-3421

criminal procedure—evidence—motions
state v. hachmeister
shawnee district court—affirmed
no. 114,796—june 5, 2020

FACTS: Hachmeister was convicted of premeditated murder for killing his mother. On appeal he claimed the district court abused its discretion by admitting evidence under K.S.A. 60-455 of mother thinking that Hachmeister had stolen her wedding ring, and of child pornography found on Hachmeister’s computer and the charges associated with that possession.  He also claimed eight instances of error during prosecutor’s closing argument.

ISSUES: (1) K.S.A. 60-455 evidence; (2) prosecutorial error

HELD: No error in district court’s admission of the 60-455 evidence. Probative value of the wedding ring evidence substantially outweighed any prejudice where the confrontation surrounding the missing wedding ring was key evidence of motive. And evidence of child pornography on Hachmeister’s computer and charges for possessing this porn was extremely probative in identifying Hachmeister as author of anonymous letters written by the “real killer.”

            Each allegation of prosecutorial error is examined finding only one error. Prosecutor’s comment that victim “could breathe just fine” exceeded the prosecutor’s ability to draw inferences from the evidence. This error was harmless in light of the trial as a whole and the overwhelming evidence against Hachmeister..

STATUTES: K.S.A. 2019 Supp. 60-455(b)

Tags:  appeals  Cowley District Court  criminal procedure  evidence  juries  motions  Sedgwick District Court  Shawnee District Court  verdicts 

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May 29, 2020 Digests

Posted By Administration, Monday, June 1, 2020

Kansas Supreme Court

criminal 

criminal procedure—motions—sentencing
state v. cott
johnson district court—affirmed
no. 120,075—may 29, 2020

FACTS: Cott was convicted on guilty plea to two counts of premeditated murder. Hard 50 sentence imposed. Nine months later, he filed pro se motion to withdraw his guilty plea, arguing in part the alleged lack of help from defense counsel, and the coercive effect of Cott’s mother urging him to enter into plea agreement to avoid death penalty, left him feeling he had no choice. He further claimed that no one explained that hard 50 sentence would not be eligible for good time credit. District court made specific findings in holding that manifest injustice did not warrant voiding the plea agreement. Cott appealed.

ISSUE: Post-sentencing motion to withdraw plea

HELD: District court did not abuse its discretion by denying Cott’s motion to withdraw plea. Cott failed to demonstrate his mother’s pressure deprived him of the ability to make his own decisions. He also failed to demonstrate that district court’s findings were arbitrary or unreasonable, or based on any error of law or fact.

STATUTES: K.S.A. 2019 Supp. 21-5419(c), 22-3210, -3210(d)(2); K.S.A. 21-4636

 

Kansas Court of Appeals

criminal

appeals—appellate procedure—constitutional law—criminal law—evidence—motions—statutes
state v. contreras
scott district court—reversed and remanded
no. 119,584—may 29, 2020

FACTS: Contreras charged with rape, aggravated criminal sodomy, and aggravated intimidation of a child (“K.B.”). Defense called K.B.’s father (“Father”) to describe Father’s encounter with K.B. in December 2012. Father, who had been convicted of sodomy on plea agreement for acts between April 2011 and March 2012, said he wanted to invoke Fifth Amendment right against self-incrimination and not testify. District court determined Father’s prior criminal conviction concerning K.B. did not extend to events occurring in December 2012, allowed Father to invoke Fifth Amendment, and excused him from the trial. Jury convicted Contreras on the charged crimes. He appealed, claiming in part the district court denied him a fair trial by allowing a witness who could have bolstered Contreras’ credibility to invoke the Fifth Amendment privilege against self-incrimination. State asserted the Fifth Amendment issue was not preserved for appellate review because Contreras failed to object to district court’s decision to allow invocation of Fifth Amendment and excusal of Father from trial, and argued the doctrines of acquiescence or judicial estoppel should be applied.

ISSUES: (1) Appeal—procedural barriers; (2) Constitutional right to present a defense

HELD: There is no procedural bar to consideration of Contreras’ Fifth Amendment claim. The contemporaneous objection requirement in K.S.A. 60-404 to admission of evidence does not apply to the question of law whether a witness has a right to assert Fifth Amendment privilege against self-incrimination. Even if rule would generally apply, purpose of the rule was met by parties’ presentation of the issue to district court for its resolution. State abandoned its argument that Contreras had to object when district court excused Father from trial. District court’s Fifth Amendment ruling is not a judgment to which the doctrine of acquiescence applies. And doctrine of judicial estoppel does not bar Contreras’ claim.

            District court’s Fifth Amendment determination was made without benefit of essential documents that would have informed its decision as to whether Father’s conviction included the December 2012 timeframe. Panel granted Contreras’ motion on appeal to take judicial notice of additional documents relevant to Father’s prior conviction, and those documents support Contreras’ claim that Father did not have a privilege against self-incrimination for the December 2012 incident with K.B. District court erred in failing to compel his testimony. That error was not harmless in this case where district court found Father’s testimony was material, relevant and admissible, and Father’s testimony was crucial to support Contreras’ credibility. All convictions are reversed and case is remanded for a new trial.   

STATUTES: K.S.A. 2019 Supp. 21-5501(b), -5504(b)(1), 22-3415(b)(1); K.S.A. 60-404, -405, -425, -407, -409, -412(c)

Tags:  appeals  appellate procedure  Constitutional law  criminal law  criminal procedure  evidence  Johnson District Court  motions  Scott District Court  sentencing  statutes 

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May 22, 2020 Digests

Posted By Administration, Tuesday, May 26, 2020

Kansas Court of Appeals

criminal

APPEALS—CONSTITUTIONAL LAW—CRIMINAL PROCEDURE—MOTIONS
STATE V. MABERRY
RENO DISTRICT COURT—AFFIRMED IN PART, VACATED IN PART, REMANDED
No. 120,972—MAY 22, 2020

FACTS: May 2018 sentence imposed after Maberry pled guilty to aggravated escape from custody. In July correspondence with appellate court he discovered no appeal was pending in his criminal case. He filed August pro se motion to withdraw his guilty plea. District court summarily denied the motion three days later. In November letter to district court Maberry asked for status on his motion to withdraw, citing months-long delay with no ruling. In February 2019, he filed pro se motion to appeal out of time. District court summarily denied the motion, stating in part no rule required the court to separately advise Maberry of the right to appeal the denial of a motion to withdraw plea, and noting the amount of time between Maberry’s motion for leave to appeal out of time and his November awareness of the August ruling on the motion to withdraw his plea. Maberry appealed the district court’s denial of the motion to appeal out of time arguing due process entitled him to an out-of-time appeal because district court: (1) failed to notify him that it denied his motion to withdraw plea until after time to appeal had expired, and (2) failed to inform him of his appellate rights upon the denial of his motion withdraw plea.

ISSUES: (1) Due process—notice of denial of motion to withdraw plea; (2) due process—informing defendant of right to appeal and statutory time for filing an appeal.

HELD: Supreme Court Rule 134(a) provides that if the district court rules on a motion or other application when an affected party who has appeared in the action is not present—either in person or by the party’s attorney—the court immediately must serve notice of the ruling.

To satisfy Due Process Clause in federal and Kansas constitutions, substantial compliance with this rule is required before the time to file a notice of appeal begins to run on the denial of a motion to withdraw plea. Record in this case is insufficient to determine whether district court substantially complied with the requirement to serve Maberry with notice of the ruling denying the motion to withdraw plea. The lack of specific findings of fact on this important issue precludes meaningful appellate review. District court’s summary dismissal is vacated and case is remanded with directions to make findings regarding whether district court substantially complied with Supreme Court Rule 134(a).

            District court is affirmed on Maberry’s second issue. Maberry’s argument - that State v. Hemphill, 286 Kan. 583 (2008), wrongly held the judicial exceptions in State v. Ortiz, 230 Kan. 733 (1982), to an untimely appeal do not apply in context of a motion to withdraw plea - is rejected. Because a criminal defendant does not have a statutory right to be informed of right to appeal from a denial of a motion to withdraw plea, Due Process Clause of federal and Kansas constitutions do not require that district court inform the defendant of the right to appeal and the statutory time limit to appeal the denial of the motion.   

STATUTES: K.S.A. 2019 Supp. 22-3608, -3608(c); K.S.A. 2017 Supp. 21-5911(b)(1)(A); K.S.A. 22-3210(a)(2), -3424(f), -4505(a), 60-258, -1507

appeals—constitutional law—criminal law—criminal procedure—statutes
state v. mejia
johnson district court—reversed and remanded
No. 121,475—may 22, 2020

FACTS: Meijia charged in part with misdemeanor driving under influence (DUI), K.S.A. 8-1567, which the State raised to a felony based on Mejia’s three Missouri convictions for driving while impaired (DWI). Mejia challenged  the use of his Missouri convictions. Relying in part on State v. Wetrich, 307 Kan. 552 (2018), district court found the out-of-state convictions could not be used because the Missouri statute proscribed a broader range of conduct than K.S.A. 8-1567. District court also found comparison of the statutory elements of the Missouri offenses required consideration of facts underlying Mejia’s convictions, in violation of Apprendi and its application. District court refused to bind Mejia over on the felony charge and it granted State’s motion to dismiss without prejudice the remaining charges against Mejia. State appealed. Mejia argued the State’s appeal in this criminal case was improper.

ISSUES: (1) State’s appeal; (2)  K.S.A. 8-1567 and out-of-state convictions

HELD: State properly appealed the district court’s dismissal of the felony DUI charge. District court’s refusal to hold Mejia on that charge and its dismissal of the other charges brought the State within the scope of the statutory exception which allows State to appeal dismissal of the complaint. And State’s use of Mejia’s Missouri convictions as predicate offense under the Kansas statute does not rest on district court’s resolution of conflicting testimony or other disputed facts.

            State properly relied on Mejia’s three Missouri convictions to charge him with felony violation of K.S.A. 8-1567. District court’s reliance on Wetrich is misplaced. Legislature amended K.S.A. 8-1567 post-Wetrich to permit charging and sentencing enhancements for DUIs based on out-of-state convictions under statutes comparable to Kansas law—meaning “similar to” rather than the same or narrower than Kansas law. Chapters 8 and 21, and use of the term “comparable,” are compared and contrasted in light of legislative policy behind escalating punishment of recidivist drunk drivers. A conviction from another state for driving under the influence may be used to enhance a DUI charge under K.S.A. 2019 8-1567 from a misdemeanor to a felony or to increase punishment of a recidivist, even though the other state’s statute proscribes a broader range of conduct. The two statutes need only be generally comparable as defined in K.S.A. 2019 Supp. 8-1567(j). The relevant Missouri statute in Mejia’s out-of-state convictions is similar to K.S.A. 8-1567, so these convictions support the felony charge. Reversed and remanded to reinstate the felony DUI charge.

DISSENT (Schroeder, J.): Would find Mejia’s prior Missouri DWI convictions cannot be used to enhance his charge to a felony DUI, and district court’s dismissal of the charge at the preliminary hearing was proper. Criticizes majority’s reasoning and resulting conclusion that the Wetrich line of cases is inapplicable to Kansas’ DUI law. Disagrees that the meaning of “comparable” in K.S.A. 2019 Supp. 8-1567(i)(3) is ambiguous on its face, thus there was no need for majority’s examination of legislative intent. Majority also ignores holding in State v. Gensler, 308 Kan. 674 (2017). Believes the identical to or narrower than approach must be followed to avoid running afoul of Apprendi and its progeny.

STATUTES: K.S.A. 2019 Supp. 8-1485,  -1567, -1567(a), -1567(a)(1), 1567(a)(2), -1567(a)(3), -1567(b), -1567(b)(1)(A)-(E), -1567(i), -1567(i)(1), -1567(i)(2), -1567(i)(3), -(i)(3)(B), -1567(j), -1567(j)(1), 1567(i)(2), -1567(i)(3), 21-6801 et seq., -6811(e)(3), 22-3602(b)(1); K.S.A. 2018 Supp. 8-262, -1567, 1568; K.S.A. 2017 Supp. 8-1567(i)(1), 21-6811(e)(2)(A), -6811(e)(3); K.S.A. 8-1567, -1567(a), -1567(i), 1567(i)(3), -1567(j), 32-1102(a), -1131

Tags:  appeals  Apprendi  constitutional law  criminal law  criminal procedure  Hemphill  Johnson District Court  motions  Ortiz  Reno District Court  statutes  Wetrich 

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April 24, 2020 Digests

Posted By Administration, Monday, April 27, 2020

Kansas Supreme Court

criminal

appeals—criminal procedure—immunities—statutes
state v. collins
sedgwick district court—reversed and remanded; court of appeals—affirmed
no. 117,743—April 24, 2020

FACTS: Wielding a knife in an altercation with three unarmed women, Collins killed one and injured a second. Collins filed motion to dismiss the complaint, claiming self-defense immunity. District court granted the motion and dismissed charges of second-degree murder and reckless aggravated battery, ruling Collins had reasonable grounds to believe he was in danger of great bodily harm. Court of Appeals reversed and remanded for further proceedings. 56 Kan. App. 2d 140 (2018).  Collins’ petition for review granted. Review also granted on State’s conditional cross-petition for review of panel’s failure to decide whether State met its probable cause burden to demonstrate Collins was the aggressor at the time of the fatal stabbing and initially provoked the use of force. Review granted on Collins’ petition and State’s conditional cross-petition.

ISSUE: Self-defense immunity

HELD: Collins is not entitled to self-defense immunity from prosecution. Relevant statutes examined—K.S.A. 2019 Supp. 21-5231 (self-defense immunity statute and State’s burden to show probable cause the defendant’s use of force was not statutorily justified), K.S.A. 2019 Supp. 21-5222 (statutory justification for use of force), and K.S.A. 2019 Supp. 21-5226 (grounds making self-defense justification unavailable). Another case examining these statutes, State v. Thomas, 311 Kan. __  (this day decided), is cited. On facts found by district court, there is probable cause to believe Collins’ use of force was not statutorily justified. The escalating sequences of events comprising the deadly encounter are broken down into four discrete uses of force and examined. The initial aggressor statute, K.S.A. 2019 Supp. 21-5226, operates conclusively to deny Collins’ immunity motion and district court is reversed on that basis. District relied on its accurate finding of no evidence that Collins was escaping from a felony, but failed to consider other disqualifying conduct in 21-5226(a)—that Collins was attempting to commit, or committing a forcible felony. State supplied probable cause to believe Collins’ killing and wounding of the victims were not justifiable acts of self-defense under the Kansas statutory scheme. State’s prosecution of Collins should have been permitted to continue.  

STATUTES: K.S.A. 2019 Supp. 21-5111(n), -5221, -5221(a)(1)(A), -5222, -5222(b), -5226, -5226(a), -5226(b), -5226(c), -5226(c)(1), -5226(c)(2), -5231, -5231(a) -5231(c), -5403(a)(1), -5412(a); K.S.A. 2015 Supp. 21-5413(b)(2)(B)

appeals—criminal procedure—motions
state v. espinoza
wyandotte district court—affirmed
no. 118,737—april 24, 2020

FACTS: Espinoza pleaded guilty to first-degree felony murder. In pre-sentence motion he sought a durational departure claiming the mandated hard-25 sentence was unconstitutional as applied. He argued the three-pronged proportionality test in State v. Freeman 223 Kan. 362 (1978), required district court to assess specific facts of his case to determine constitutionality of his sentence under § 9 of Kansas Constitutional Bill of Rights, and listed facts he believed weighed in favor of granting a durational departure. District court denied the challenge. Espinosa challenged that decision on direct appeal, arguing the district court failed to make such findings, and seeking remand to develop the necessary factual record.

ISSUE: Appellate review of constitutional claim

HELD: It is a defendant’s responsibility to ensure the district court makes the factual findings necessary for appellate review, and this responsibility goes beyond merely raising a constitutional claim. Here, Espinoza did not object to district court’s failure to make factual findings at sentence, and he did not file a motion under Kansas Supreme Court Rule 165. Espinoza’s as-applied challenge to the constitutionality of his hard-25 sentence is not amenable to appellate review.  

appeals—criminal procedure—immunities—statutes
state v. Thomas
barton district court—reversed and remanded; court of appeals—affirmed
no. 116,111—April 24, 2020

FACTS:  State charged Thomas with first-degree murder for shooting and killing an unarmed man outside that man’s residence. Thomas filed pretrial motion to dismiss based on self-defense immunity under K.S.A. 2019 Supp. 21-5231. State argued Thomas did not qualify for statutory immunity because his use of deadly force was not justified under K.S.A. 2019 Supp. 5222, and because Thomas was the initial aggressor under K.S.A. 2019 Supp. 21-5226. Making no distinct factual findings, district court dismissed the complaint, cited the investigating officer’s testimony that Thomas was justified in drawing his weapon, and held the State did not meet its burden to show probable cause the self-defense immunity did not apply. State appealed. Court of Appeals reversed in unpublished opinion, finding the district court failed to make sufficient findings of fact and conclusions of law, and remanded case for another evidentiary hearing in compliance with Supreme Court Rule 165. Thomas’ petition for review granted.

ISSUE: Self-defense immunity

HELD: Panel’s judgment is affirmed. District court’s role in deciding complex immunity claims before trial is discussed, and relevant statutes are examined - K.S.A. 2019 Supp. 21-5231 (self -defense immunity statute and State’s burden to show probable cause the defendant’s use of force was not statutorily justified), K.S.A. 2019 Supp. 21-5222 (statutory justification for use of force), and K.S.A. 2019 Supp. 21-5226 (grounds making self-defense justification unavailable). Another case examining these statutes, State v. Collins, 311 Kan. __  (this day decided), is cited. Under State v. Hardy, 305 Kan. 1001 (2017), district court’s fleeting explanation of its conclusions in this case, without first adequately addressing contradictory testimony, was error and specific examples are identified. Also, Thomas did not directly challenge the panel’s additional direction that a new evidentiary hearing is necessary before making the required findings of fact and conclusions of law. District court’s judgment is reversed and case is remanded with directions.

STATUTE: K.S.A. 2019 Supp. 21-5221(a), -5221(a)(1)(B), -5221(a)(2), -5222, -5222(b), -5226, -5226(b), -5226(c), -5231, -5402(a)(1)

Tags:  appeals  Barton District Court  criminal procedure  immunities  motions  Sedgwick District Court  statutes  Wyandotte District Court 

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April 17, 2020 Digests

Posted By Administration, Monday, April 20, 2020

Kansas Supreme Court

criminal

appeals—criminal procedure—evidence—jury instructions—sentences
state v. broxton
wyandotte district court—reversed and remanded
court of appeals—affirmed in part and reversed in part
no. 114,675—april 17, 2020

FACTS: Broxton convicted of second-degree murder, burglary, and felony theft. During trial, State introduced identity evidence of Broxton’s arrest in a 1996 Florida homicide case that closely mirrored the homicide in this case. District court denied Broxton’s request to admit evidence of a “No Information” document executed by the Florida prosecutor that indicated Florida lacked sufficient evidence to charge Broxton. District court found the document lacked probative value because it did not decisively state Broxton was innocent of that crime. District court also denied Broxton’s request for a felony-murder instruction, finding the instruction was legally inappropriate because State only charged Broxton with first-degree premeditated murder and felony murder. is not a lesser included offense. Broxton appealed claiming district court erred by: (1) failing to give a felony-murder instruction; (2) excluding from evidence the Florida homicide investigation document; and (3) improperly scoring Broxton’s prior Florida burglary conviction as person felony. Court of Appeals affirmed in unpublished opinion.

            As to the felony-murder instruction claim, panel found such an instruction was not factually appropriate in this case, and relying on State v. Young, 277 Kan. 588 (2004), explained that district court may instruct for felony murder even though the State only charged premeditated first-degree murder but was under no duty to do so. Broxton petitioned for review of panel’s decision that a felony-murder instruction was not factually appropriate. State cross-petitioned panel’s holding that a felony-murder instruction was legally appropriate.

            As to the exclusion of evidence claim, panel found the No Information document was relevant, but district court’s error in excluding this evidence was harmless. On appeal, Broxton challenged the panel’s harmlessness conclusion; State challenged panel’s finding of error.

            As to the scoring of Broxton’s prior Florida burglary conviction, a claim raised for first time on appeal, Broxton cites the change of law in State v. Wetrich, 307 Kan. 552 (2018).

            Review granted on Broxton’s petition and the State’s cross-petition.

ISSUES: (1) Jury instruction—uncharged crime; (2) admission of “no information” evidence

HELD: District court did not err in refusing to give a felony-murder jury instruction. Young predates the more precise framework for analyzing jury instructions adopted in State v. Plummer, 295 Kan. 156 (2012), and misstep in Young is apparent when viewed in light of Plummer. Because State did not charge Broxton with felony murder—and felony murder is not a lesser included offense of any crime Broxton was charged with—a felony-murder instruction was not legally appropriate in this case. No need to consider if the instruction would have been factually appropriate.

            District court erred by excluding the Florida “No Information” document from evidence, but any prejudice resulting from this exclusion was harmless in light of the entire record.

            The 1989 Florida burglary conviction must be scored as a nonperson felony. The Florida burglary statue prohibits a broader range of conduct than the Kansas statute, thus these are not comparable offenses. Under State v. Williams,  311 Kan. __ (2020), the change of law in Wetrich did not make Broxton’s sentence illegal, but did render it erroneous. Broxton must be resentenced correctly with his Florida burglary conviction scored as a nonperson felony. Sentence is vacated and case is remanded for resentencing.

STATUTES: K.S.A. 2019 Supp. 60-261, -455; K.S.A. 21-6810(d), -6811(c), -6811(j), 60-455

appeals—constitutional law—criminal law—sentences—statutes
state v. Corbin
saline district court—affirmed
no. 119,665—April 17, 2020

FACTS: Corbin entered no contest plea to first-degree premeditated murder. At sentencing he argued he was a person with an intellectual disability who was not subject to a mandatory minimum prison term by operation of K.S.A. 2019 Supp. 21-6622(b). District court disagreed and imposed a hard-25 life sentence. While Corbin’s appeal was pending, the legislature amended the statute to add other ways to establish the “significantly sub-average general intellectual functioning” standard. Kansas Supreme Court reversed and remanded for district court to reconsider Corbin’s motion using the new legislative criteria for determining intellectual disability. State v. Corbin, 305 Kan. 619 (2016). On remand, Corbin was allowed to present additional information. District court resentenced him to the original mandatory term, again finding Corbin was not a person with intellectual disability and. Corbin appealed.

ISSUE: Intellectual disability

HELD: District court did not abuse its discretion when it rejected Corbin’s motion and imposed a mandatory term of imprisonment. District court’s decision is reviewed as a “reason to believe” determination under K.S.A. 2019 Supp. 21-6622(b). Implications of extending State v. Thurber, 308 Kan. 140 (2018), outside the death penalty context are not argued or considered. 

STATUTES: K.S.A. 2019 Supp. 21-6622, -6622(b), 6622(h), 22-3601(b); K.S.A. 2015 Supp. 76-12b01(i); K.S.A. 60-2101(b), 76-12b01(i)

contracts—criminal procedure—evidence
state v. frazier
geary district court—reversed and remanded—court of appeals - reversed
no. 117,456—April 17, 2020

FACTS: Officers stopped car driven by Gould with passenger Frazier. Heroin was found, which led to search warrant in Ohio and discovery of drug evidence there. In Kansas, Frazier and Gould entered pleas pursuant to plea agreements that stated Ohio authorities agreed to dismiss and/or not file any charges resulting out of search warrant obtained as a result of the Kansas arrest. Prior to sentencing Frazier filed motion to withdraw plea, citing his discovery that an Ohio prosecutor had signed Gould’s agreement but not Frazier’s. District court denied the motion, finding the plea was fairly made and Frazier fully understood the consequences of his plea. Applying factors in State v. Edgar, 281 Kan. 30 (2006), Court of Appeals affirmed in unpublished opinion. Panel emphasized Frazier’s awareness that his attorney had not spoken with Ohio authorities, and they had not signed off on his plea agreement, and concluded Frazier was not misled or coerced about possibility of being charged in Ohio. Frazier petitioned for review, arguing district court abused its discretion because there were misleading or false statements contained in the plea agreement.

ISSUE: Withdrawal of plea—plea agreement  

HELD: Fundamental problem not addressed below is that Frazier was relying on a promise of conduct not made by a party to the plea agreement. Under basic principle of contract law, prosecutor and defense counsel presented Frazier with a contract that could be legally unenforceable against any Ohio prosecutor. A defendant does not understandingly sign a plea agreement when he relies on an uncertain provision that works in his favor and he justifiably believes that provision to be a certainty. No dispute in this case that the certainty of the lack of prosecution in Ohio was a significant factor in Frazier’s decision to enter into the plea agreement. District court’s decision finding no good cause for withdrawal of Frazier’s plea was based on errors of fact and law. Reversed and remanded to district court for Frazier to be permitted to withdraw his plea.    

STATUTE: K.S.A. 2019 Supp. 22-3210(d)(1)

appeals—constitutional law—criminal procedure
state v. harris
atchison district court—reversed and remanded; court of appeals—reversed
no. 117,362—april 17, 2020

FACTS: Harris was convicted in bench trial of felonious possession of marijuana. He appealed on four issues, claiming in part for first time that he did not properly waive his right to jury trial. Court of Appeals affirmed, 55 Kan.App.2d 579 (2018). Review granted on all issues.

ISSUE: Waiver of right to jury trial

HELD: Court addresses merits of the jury trial claim to prevent denial of fundamental right.  District court failed to properly apprise Harris of right to a jury trial and failed to ensure Harris understood the nature of the right he was waiving. Once Harris expressed his preference, district court simply accepted that Harris wanted the court to decide the matter and moved on without taking any steps to ensure Harris understood the right he was giving up. District court and Court of Appeals decisions are reversed. Case remanded to district court so Harris can be informed of right to a jury trial—and either exercise that right or properly waive it. Remaining issues in the appeal are not addressed.

STATUTES: None

CRIMINAL LAW—CRIMINAL PROCEDURE—EVIDENCE—JURY INSTRUCTIONS

STATE V. UK

LYON DISTRICT COURT—AFFIRMED
NO. 119,712—APRIL 17, 2020

FACTS: UK charged and convicted of first-degree premeditated murder. Based on evidence he had quarreled with victim, UK requested a voluntary manslaughter instruction as a lesser included offense. District court denied that request, finding no evidence of legally sufficient provocation. On appeal, UK claimed district court erred in not giving the jury the requested instruction, arguing district court improperly evaluated the degree of the quarrel as opposed to its existence, and further argued Kansas caselaw has erroneously conflated the separate statutory elements of “sudden quarrel” with “heat of passion.” UK also claimed for first time on appeal that district court erred in giving jury an unmodified PIK instruction that did not sufficiently define “premeditation.”

ISSUES: (1)  Jury instruction—voluntary manslaughter; (2) jury instruction—premeditation

HELD: UK’s request for a voluntary manslaughter instruction was legally appropriate but not factually appropriate. The mere existence of a “sudden quarrel” immediately preceding a homicide, without evidence of legally sufficient provocation, is insufficient to make a jury instruction on voluntary manslaughter factually appropriate. In this case, no error in district court’s limited gatekeeping determination that evidence did not constitute legally sufficient provocation. And UK’s conflation-of-statutory-elements argument essentially asks the court to overturn precedent dating back to State v. Coop,  223 Kan. 302 (1978), which the court declines to do.

            District court did not err in defining premeditation for the jury. Though the PIK instruction used both “intent” and “intentional” within two sentences, in context the meanings    of those two words leave no doubt that “premeditation”—as a thought process conducted some time before an act—is clearly different than the intentional nature of the act itself.              

STATUTE: K.S.A. 2019 Supp. 21-5202(h), -5402(a)(1), -5404

 

Kansas Court of Appeals

Civil

ACQUIESCENCE—CHILD SUPPORT—JURISDICTION
IN RE HENSON
SEDGWICK DISTRICT COURT—REVERSED AND REMANDED
NO. 120,543—APRIL 17, 2020

FACTS: Chris and Gina Henson divorced in 1991. Gina was awarded primary custody of the couple's children; Chris was ordered to pay child support and half of the children's medical expenses. Several years after the divorce, Chris moved to California while Gina remained in Kansas. In 1994, Gina attempted to enforce Chris's child support obligations, a case was opened in California, and Chris began paying child support under an income withholding order. A few years later, the district court trustee asked the California court to increase the child support amount and require payment for medical bills and insurance. The California court significantly increased Chris's child support obligation and asked that additional funds be paid towards the arrearage. In 2002, Chris moved to Colorado. The court trustee registered the California judgment and Chris's employer began withholding income. Gina moved to determine an arrearage, and after Chris did not appear the district court issued a default judgment, basing the arrearage amount on the California judgment. Chris eventually moved to set aside the default judgment on grounds that the California judgment was void. That motion was denied, and the district court renewed its holding that the California judgment remains in effect and that any calculation of Chris's arrearage should be based off that judgment. Chris appealed

ISSUES: (1) Jurisdiction of California court; (2) validity of default judgment; (3) request for setoff; (4) income withholding order; (5) attorney fees

HELD: Chris's challenge about the validity of the California judgment involves a challenge to subject matter jurisdiction. As such, it may be raised at any time. Similarly, there is no time limit on a challenge to a void judgment. Chris did not acquiesce in the California judgment by paying child support under it; paying a void judgment cannot amount to acquiescence. When the district court modified Chris's child support obligation, the Uniform Reciprocal Enforcement of Support Act was in effect in California but not in Kansas. The Full Faith in Credit for Child Support Orders Act accounts for this, requiring each state to recognize ongoing child support obligations from other states and giving them power to modify child support obligations only under limited circumstances. The FFCCSOA preempts URESA with respect to child support modification in an URESA enforcement action. Under the FFCCSOA, only Kansas had jurisdiction to modify Chris's child support obligation. California's child support modification order is void and cannot be used as a basis for default judgment or to determine arrearages. The district court did not make adequate findings of fact to allow for a review of whether Chris is entitled to an equitable setoff for amounts he overpaid under the void California judgment. That fact-finding must be done on remand. The district court was required to issue an income withholding order after it determined the amount of Chris's arrearage. But because the order is based on the void California judgment, the withholding order is no longer legally enforceable. On remand, the district court must determine the appropriateness of enforcing any future income withholding order. The district court did not abuse its discretion by awarding Gina attorney fees for representation undertaken in district court. But Gina is not awarded attorney fees on appeal because the application for fees did not comply with Supreme Court Rule 7.07(b)(2).

STATUTES: 23 U.S.C. §1738B; K.S.A. 2019 Supp. 23-2715, -3103(a), -36,202, -36,205, -36,205(c), -36,313, 60-260(b)(4), -260(b)(5), -260(c); K.S.A. 23-451, -9,101, -3106(a)

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