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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 In unpublished opinion the Court of Appeals affirmed Braun’s conviction.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 10, 2020 Digests

Posted By Administration, Monday, July 13, 2020

Kansas Supreme Court

Civil

ADOPTION
IN RE ADOPTION OF BABY GIRL G.
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED, CASE REMANDED
NO. 121,051—JULY 10, 2020

FACTS: Baby Girl G. was born in 2018. The day after her birth the natural mother signed a consent to adoption and relinquished her parental rights. In that consent form, she named two men as possible fathers. The adoptive parents filed actions in district court seeking to terminate the parental rights of natural mother and both men named as possible fathers. A month later, Father filed a voluntary acknowledgement of paternity and indicated his intent to contest the adoption. After an evidentiary hearing, the district court found that Father failed to provide meaningful support to natural mother during the final six months of her pregnancy. The district court also found that Father was unfit on several grounds, but it elected not to use them as a basis for termination. Father's parental rights were terminated. The court of appeals affirmed that ruling but reversed the award of attorney fees and remanded the case to district court for further consideration of that issue. Father's petition for review was granted.

ISSUES: (1) Constitutionality of K.S.A. 2019 Supp. 59-2136(h)(1)(D); (2) whether there was adequate evidence of a failure to support;

HELD: The court declines to address the constitutional issue because it was not raised before the district court or court of appeals. It is not sufficient to raise a new issue for the first time in a petition for review, and counsel presented inconsistent arguments to the appellate courts. There was sufficient evidence to support the district court's decision that Father failed to support the natural mother during the last six months of her pregnancy. Father's non-financial support was minimal and of little value to the mother and his financial support was inconsequential.

DISSENT: (Stegall, J.) Justice Stegall would consider the merits of Father's constitutional claim in order to serve the ends of justice. Preservation is a prudential rule rather than a jurisdictional bar and it can be waived if justice requires. The disparate treatment for unwed biological fathers in adoption cases is troubling.

STATUTE: K.S.A. 2019 Supp. 59-2136, -2136(h), -2136(h)(1)

JURISDICTION—TAXATION
IN RE EQUALIZATION APPEALS OF TARGET CORPORATION
BOARD OF TAX APPEALS—COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART, CASE REMANDED TO THE COURT OF APPEALS
NO. 119,228 – JULY 10, 2020

 FACTS: Target is one of several commercial real estate owners in Johnson County which appeals the County's ad valorem tax valuation for the 2016 tax year on seven commercial properties. After an evidentiary hearing, the Board of Tax Appeals issued a summary decision ordering lower values for each property. The Taxpayers promptly requested a full and complete written opinion. Five weeks later, the Taxpayers confirmed that the County did not request a full and complete written opinion and subsequently withdrew their request. The County objected, asking BOTA to issue a full and complete written opinion regardless of the withdrawal. The County noted that it didn't learn of the withdrawal until it was too late to file its own request. In the alternative, the County asked that BOTA consider the objection as a request for reconsideration of the summary decision. BOTA denied both requests and the County appealed. The court of appeals dismissed the appeal for lack of jurisdiction and the petition for review was granted.

ISSUES: (1) Jurisdiction; (2) scope of review

HELD: The Kansas Judicial Review Act provides the exclusive means for judicial review of agency action. There is not a final order in this case because there is no full and complete written opinion and the Taxpayers did not seek a trial de novo in district court. The KJRA does allow for limited review of nonfinal agency actions if certain conditions are met. BOTA's failure to issue a full and complete written opinion is properly considered a nonfinal agency decision. K.S.A. 77-631(a) allows for an appeal from an agency's failure to act in a timely manner. The County was an aggrieved party, as that term is used in K.S.A. 74-2426(c). BOTA's refusal to issue the full and complete written opinion was an order and is appealable on an interlocutory basis. The case is remanded to the court of appeals for further consideration of whether BOTA acted properly in failing to issue a full and complete opinion. Because there has not been a final decision the court of appeals cannot yet address the merits of the County's argument.

criminal

appellate procedure—criminal procedure—evidence
state v. brazzle
riley district court—affirmed; court of appeals—affirmed
no. 116,649—july 10, 2020

FACTS: Following car stop and subsequent discovery of drugs, Brazzle was convicted of drug-related crimes including possession of methamphetamine with intent to distribute and possession of oxycodone. During trial, district court found the State’s prior crime evidence of Brazzle’s sale of methamphetamine to undercover detective was admissible to show whether Brazzle intended to distribute the methamphetamine found in the car. On appeal, Brazzle claimed: (1) district court erred in admitting K.S.A. 60-455 evidence related to the prior methamphetamine sales; (2) jury instruction on possession of oxycodone did not require jury to find that he illegally possessed the drug without a prescription; and (3) insufficient evidence supported his conviction for possession of oxycodone. Court of appeals affirmed, finding in part that Brazzle could not claim instructional error on appeal because he advocated for the version of the instruction given to the jury. 54 Kan.App.2d 276 (2018). Review granted.

ISSUES: (1) Evidence of prior crimes; (2) invited error; (3) sufficiency of the evidence

HELD: District court did not err in admitting prior crimes evidence under K.S.A. 60-455. Caselaw on evidence of intent for simple possession is distinguished from possession with intent to distribute. If a defendant argues he or she lacked the intent to distribute drugs, evidence about a prior crime committed by the defendant may be material, especially if evidence establishes similarities between the prior crime and the charged crime. Under facts in this case the prior crimes evidence was material to and probative of Brazzle’s intent to distribute, and the risk for undue prejudice did not substantially outweigh the probative value.  

            By failing to argue in his petition for review why the court of appeals erred in its invited error analysis, Brazzle waived any argument he might have as to why the invited error doctrine did not apply to his claim of instructional error.

            Sufficient evidence supports Brazzle’s possession of oxycodone conviction. There was circumstantial evidence that oxycodone was part of Brazzle’s illicit drug inventory, and jury could infer Brazzle would not put his own prescription medication in same bag containing drugs that he intended to distribute. Officer’s testimony comparing the appearance of Brazzle’s pills to an image of a pill identified as oxycodone on drugs.com was sufficient. Brazzle did not object to officer’s testimony regarding how he identified the pills found in the car, and did not object to the pills being entered into evidence. Brazzle cannot recast an evidentiary ruling as a sufficiency argument.

STATUTES: K.S.A. 2019 Supp. 60-455; K.S.A. 2015 Supp. 21-5702(b), -5705(e)(2), -5706(a), 65-4116(c)(3); K.S.A. 60-404, -455 Civil 

criminal procedure—juries—motions—statutes
state v. carter
sedgwick district court—affirmed
no. 119,315—july 10, 2020

FACTS: State filed charges against Carter arising from Carter hitting and threatening a victim (Crowe) in November 2015, and arising from a December 2015 shooting that resulted in the death of two other victims. District court granted State’s motion to consolidate the charges, finding the charges were connected. Jury convicted Carter of first-degree felony murder, criminal discharge of a firearm, aggravated battery, and criminal threat. On appeal, he claimed district court erroneously refused to add language to the aiding and abetting instructing that “mere presence” alone does not establish mental culpability to convict under aiding and abetting, citing State v. Llamas,  298 Kan. 246 (2013), and the “better practice” recommendation in State v. Hilt,  2999 Kan. 176 (2014), to give such language. Carter also claimed the district court erred in consolidating the charges.

ISSUE: (1) Jury instruction—aiding and abetting; (2) motion to consolidate

HELD: Court rejects Carter’s argument for converting “better practice” into a legal requirement that “mere presence” language must be included in cases where a defendant is charged under an aiding and abetting theory and requests the instruction. While there was a modicum of evidence that Carter’s requested instruction was factually appropriate, any possible error in failing to give the requested instruction was harmless given the weight of evidence supporting Carter’s guilt.

            District court’s decision to consolidate the charges is affirmed. Cases involving consolidation decisions are discussed. In this case, Carter’s battery of Crowe precipitated the factual setting which led to Carter’s participation in the shooting.  District court correctly found a statutory condition for consolidation was met, and did not abuse its discretion in allowing consolidation.    

STATUTES: K.S.A. 2019 Supp. 60-261; K.S.A. 22-3202, -3202(1), -3202(3), -3203,

 

Kansas Court of Appeals

  CRIMINAL

criminal procedure—evidence—juries—motions—sentencing
state v. williams
sedgwick district court—affirmed in part, reversed in part, remanded
no. 120,768—july 10, 2020

FACTS: Jury convicted Williams of rape of 13-year old girl. During trial State introduced DNA results of one of multiple swabs taken from victim. Sentencing court imposed concurrent hard-25 life sentences, but journal entry also stated that Williams was subject to lifetime postrelease supervision for each crime. Williams filed pre-sentence motion for postconviction DNA testing of all swabs. District court summarily denied both that motion and Williams’ post-sentencing motion for reconsideration, stating only that the motion was unripe and K.S.A. 2019 Supp. 21-2512(a) did not apply. Williams appealed claiming: (1) district court erred by allowing State to exercise a peremptory strike in the midst of jury selection and prior to defense questioning of the jury panel; (2) verdict form which placed the line for finding the defendant “guilty” above “not guilty” infringed the presumption of innocence; (3) cumulative effect of these two errors denied him a fair trial; (4) journal entry of sentencing erroneously included lifetime postrelease supervision; and (5) district court erred by summarily denying his motions for postconviction DNA testing. 

ISSUES: (1) Peremptory challenge; (2) verdict form; (3) cumulative error; (4) sentencing; (5)  postconviction motion for DNA testing

HELD: Timing of State’s peremptory challenge, though unusual, was not improper and did not violate Williams’ right to a fair trial. Each party voluntarily used one peremptory challenge before the State passed the jury for cause, and used their remaining peremptory challenges after Williams approved the jury. This did not violate Kansas case law or K.S.A. 22-3411a.

            Wording of the verdict form did not violate Williams’ presumption of innocence. Kansas Supreme Court cases have rejected William’s position.

            No errors shown for application of cumulative error doctrine.

            Williams’ convictions are affirmed but case is remanded to district court for correction of error in the sentencing journal entry. A sentencing court cannot order lifetime postrelease supervision when a person has been convicted of an off-grid crime. And the journal entry erroneously recorded the effective sentence announced from the bench.

            Because district court did not rule on Williams’ motion until after pronouncing sentence, the motion was not “unripe.” District court’s summary denial of the request for postconviction DNA testing is reversed. Case is remanded so district court can articulate its findings and conclusions under the procedure outlined by Kansas statutes and Kansas Supreme Court caselaw.        

STATUTES: K.S.A. 2019 Supp. 21-2512, -2512(a), -2512(a)(1)-(3), -2512(c); K.S.A. 22-3411a

 

 

 

 

 

Tags:  adoption  appellate procedure  board of tax appeals  criminal procedure  evidence  juries  jurisdiction  motions  procedures  Riley District Court  Sedgwick District Court  sentencing  statutes  taxation 

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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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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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January 31, 2020 Digests

Posted By Administration, Tuesday, February 4, 2020

Kansas Supreme Court

criminal

constitutional law—appeals—appellate procedure—
criminal procedure—jurisdiction—statutes
state v. smith
sedgwick district court—court of appeals dismissal of the appeal is affirmed
no. 115,321—january 31, 2020

FACTS: In two separate cases, Smith pleaded guilty to refusing to submit to a test to determine presence of alcohol or drugs. Court of appeals consolidated Smith’s direct appeals. Relying on State v. Ryce, 303 Kan 899 (2016), decided while the consolidated appeal was pending, Smith argued the district court lacked jurisdiction to render the criminal judgments. In response, State argued the court of appeals lacked jurisdiction to consider a direct appeal from a guilty plea. Court of appeals dismissed Smith’s appeal for lack of subject matter jurisdiction without considering the merits of his Ryce claim.

ISSUE: (1) Appellate jurisdiction

HELD: Court of appeals did not err when it dismissed Smith’s appeal for lack of jurisdiction. K.S.A. 22-3602 is interpreted to resolve ambiguity, finding K.S.A. 22-3602(a) explicitly provides that a defendant cannot appeal a conviction after pleading guilty. K.S.A. 22-3504 allows appeals of sentences, not convictions, and federal caselaw allowing for direct appeals after guilty pleas in certain situations is inapplicable here. Smith’s convictions may be challenged in other ways, so notions of justice do not demand appellate jurisdiction. If he had still been serving his sentence, Smith could have filed a motion under K.S.A. 60-1507 to seek relief. He can also file a motion to withdraw his plea, and if denied, court of appeals has jurisdiction to consider an appeal from that denial.

STATUTES: K.S.A. 2018 Supp. 22-3601(a), -3602(a), 60-1507(a); K.S.A. 2014 Supp. 8-1025; K.S.A. 2013 Supp. 8-1025; K.S.A. 20-3001, 22-3210(d)(2), -3504, -3601, -3602, -3602(a), 60-1507, -1507; K.S.A. 62-1701 (Corrick)

 

Kansas Court of Appeals

criminal

appellate procedure—constitutional law—evidence—fourth amendment
state v. mckenna 
reno district court—affirmed
no. 119,431—january 31, 2020

FACTS: Officer checked on a sleeping or unconscious woman (McKenna) in driver’s seat in a parked car, and then arrested her on an outstanding warrant which was discovered once officer obtained McKenna’s name and ran a warrants check. McKenna was charged with possession of methamphetamine and possession of a stimulant, based on evidence found in her clothing during booking. McKenna filed motion to suppress, arguing the officer unconstitutionally detained her without reasonable suspicion she was committing a crime. District court denied the motion, finding officer’s actions were justified as a welfare check. McKenna appealed the denial of her motion to suppress. Parties submitted supplemental briefing on issue of whether the public safety stop exceeded its lawful scope when officer asked for McKenna’s name and ran a warrants check.

ISSUE: (1) Public safety stop

HELD: Under circumstances of this case, officer did not exceed scope of a public safety stop by asking for McKenna’s name, getting a verbal response, and checking that name locally for warrants. Three-part test in State v. Gonzales, 36 Kan.App.2d 446 (2006), is satisfied in this case. Record shows officer’s actions were motivated by a desire to render aid or assistance rather than to investigate criminal activity.  

STATUTE: K.S.A. 22-2402(1)

Tags:  appeals  appellate procedure  constitutional law  criminal procedure  evidence  Fourth Amendment  jurisdiction  Reno District Court  Sedgwick District Court  statutes 

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January 19, 2018 Digests

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

Kansas Supreme Court

Attorney Discipline

ORDER OF DISBARMENT
IN THE MATTER OF THEODORE R. HOEFLE
No. 22,228—JANUARY 16, 2018

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

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

civil

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

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

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

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

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

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

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

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

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

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