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April 3, 2020 Digests

Posted By Administration, Tuesday, April 7, 2020

Kansas Supreme Court

ATTORNEY DISCIPLINE

ORDER OF REINSTATEMENT
IN RE ROSIE M. QUINN
NO. 119,148—APRIL 3, 2020

FACTS: In 2018, Quinn's license to practice law in Kansas was indefinitely suspended. She filed a petition for reinstatement in 2019, and a hearing panel heard her application for reinstatement. After that hearing, the panel unanimously recommended Quinn's reinstatement, subject to certain conditions.

HELD: The court agrees with the hearing panel and grants the petition for reinstatement. Prior to her return to active practice, Quinn must comply with annual CLE requirements and pay all fees. Quinn's practice must be supervised for two years, and she must enter a monitoring agreement with the Kansas Lawyers Assistance Program.

Civil

ADMINISTRATIVE LAW—UTILITIES
IN RE JOINT APPLICATION OF WESTAR ENERGY AND
KANSAS GAS AND ELECTRIC CO
KANSAS CORPORATION COMMISSION—COURT OF APPEALS IS REVERSED, KCC IS REVERSED, CASE REMANDED
NO. 120,436—APRIL 3, 2020

FACTS: In 2018, Westar and Kansas Gas sought a rate increase and certain changes in residential rate design. When considering the rate design, the companies had to address a two-part rate, involving both a flat service charge and a variable energy charge based on the amount of energy used during a billing period. Some of the utilities' fixed costs are recovered through the variable energy charge. Some of the utilities' customers are attached to the electric grid but also get power through an alternative source, such as solar or wind. These customers, known as "partial requirements customers", use less generated electricity and may have zero due for variable energy charges. This creates an issue for the utility, which has the same fixed costs regardless of how much energy is purchased. In an attempt to attempt to even the ledger, the utilities received approval for a new rate structure, applicable only for partial users. Some of the parties to the agreement objected to the rate structure meant only for partial users. After that rate structure was approved, two intervenors appealed to the Court of Appeals.

ISSUE: (1) Whether the rate structure approved by the KCC is allowable

HELD: Kansas statute bars a utility from establishing higher rates or charges for any customer who uses alternative energy. Under the proposed dual-rate system, partial users will pay more for electricity than other customers. The Court of Appeals erred when it found a conflict in our statutes. The utilities are allowed to use a different rate structure for partial use customers, but that structure cannot result in price discrimination.

STATUTES: 16 U.S.C. §796 (17)(A); K.S.A. 66-117d, -118a(b), -118c, -1265(e), 77-621(c)(4)

criminal

criminal procedure—motions—sentences—statutes
state v. coleman
sedgwick district court—affirmed; court of appeals—affirmed
no. 115,293—april 3, 2020

FACTS: Coleman convicted in 2012, 2013, and 2014. In 2015 she was convicted of two counts of theft that were committed weeks after the effective date of the 2015 amendment of  K.S.A. 21-6810 in the Kansas Sentencing Guidelines Act (KSGA). Probation revoked in Coleman’s three prior cases. Coleman challenged the legality of her sentences in those three prior cases, and filed a direct appeal from the 2015 sentence. District court denied relief on all claims. Court of Appeals affirmed in unpublished opinion. In consolidated appeal, review granted on common issue of whether district court erred in scoring Coleman’s prior 1992 Kansas involuntary manslaughter conviction as a person felony.

ISSUES: (1) Classification of prior Kansas conviction—direct appeal; (2) classification of prior Kansas conviction—probation revocation

HELD: The identical-or-narrower test adopted in State v. Wetrich, 307 Kan. 552 (2018), for classifying prior out-of-state convictions applies as well to in-state Kansas convictions for crimes committed before KSGA used person and nonperson designations. Coleman’s arguments that the 1992 involuntary manslaughter statute was broader than the statute making involuntary manslaughter a person offense at the time of her 2015 theft convictions are examined and rejected. District court properly scored the 1992 conviction as a person felony when sentencing Coleman’s 2015 theft convictions.

            Coleman may not file a motion to correct an illegal sentence based on a constitutional challenge, and her 1992 conviction was properly scored in the earlier sentences. Court does not resolve whether the identical-or-narrower test, or the judicially adopted comparability rule for pre-KSGA Kansas offenses in State v. Keel, 302 Kan. 560 (2015), is applicable when pre-KSGA Kansas offenses are used to sentence crimes committed before K.S.A. 2015 Supp. 21-6810 codified the comparability requirement. 

STATUTES: K.S.A. 2018 Supp. 21-6801 et seq., -6804(a), -6810, -6811(e)(3); K.S.A. 2015 Supp. 21- 6810; K.S.A. 2014 Supp. 21-6810(d)(2); K.S.A. 2013 Supp. 21-5801(b)(6); K.S.A. 2011 Supp. 21-5202(j), -5405, -5801(b)(6); K.S.A. 20-3018(b), 21-3201(c), 60-2101(b); K.S.A. 21-3201, -3201(c), -3404 (Ensley 1988)

 

Kansas Court of Appeals

Civil

SUBROGATION—WORKERS COMPENSATION
HAWKINS V. SOUTHWEST KANSAS CO-OP SERVICE
WORKERS COMPENSATION BOARD—REVERSED AND REMANDED
NO. 118,379—APRIL 3, 2020

FACTS: Hawkins suffered catastrophic injuries while working for Southwest Kansas Co-op; his injuries require on-going care. Southwest Kansas Co-op provided workers compensation benefits to Hawkins in excess of $850,000, with the expectation that payments would continue. Hawkins also filed a civil action against other parties who he believed contributed to the accident and his resulting injuries. Southwest Kansas Co-op chose not to intervene in this civil action. Hawkins either settled or received jury verdicts against multiple defendants, resulting in an award of over $4 million. After all proceedings were complete, Southwest Kansas Co-op filed a request in the workers compensation proceeding for a determination of its statutory subrogation lien and any credit for future benefits. An ALJ worked up a mathematical formula to determine how much credit Southwest Kansas Co-op should receive. Three members of the Workers Compensation Board of Appeals agreed with the ALJ and affirmed the result. Hawkins appealed the Board's decision and Southwest Kansas Co-op cross-appealed.

ISSUE: (1) Amount of subrogation award for Southwest Kansas Co-op

HELD: K.S.A. 44-504 does not anticipate liens and credits for employers based on third-party litigation with multiple settlements and verdicts. It is undisputed that Southwest Kansas Co-op is entitled to some lien and future credit, but the statute is unclear as to exactly how much. A jury found that the co-op was 25 percent at fault for Hawkins's injuries. Southwest Kansas Co-op's subrogation amount should have been decreased by an amount acknowledging their 25 percent fault. The terms of a settlement agreement between Hawkins and other parties make it difficult to calculate the amount of any subrogation lien. When recalculating the subrogation amount, the Board must consider each annual payment as a recovery actually paid.

STATUTE: K.S.A. 44-504, -504(b), -504(d), 60-258a

 

Tags:  administrative law  Attorney discipline  criminal procedure  KCC  motions  sentences  statutes  subrogation  utilities  workers comp 

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March 18, 2020 Digest

Posted By Administration, Monday, March 23, 2020

Kansas Supreme Court

Attorney Discipline

ORDER OF DISBARMENT
IN RE BRENT E. MAYES
NO. 27,058—MARCH 18, 2020

FACTS: In a letter submitted to the Clerk of the Appellate Courts, Brent E. Mayes voluntarily surrendered his license to practice law in Kansas. At the time of surrender, a complaint was pending. Mr. Mayes self-reported violations of KRPC 1.1 (competence), 1.4(a) (communication), 1.8(e) (conflict of interest), and 8.4(c) (misconduct).

HELD: The court accepted Mr. Mayes's surrender and he is ordered disbarred.

Tags:  attorney discipline 

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February 28, 2020 Digests

Posted By Administration, Monday, March 2, 2020
Updated: Monday, March 2, 2020

Kansas Supreme Court

Attorney Discipline

TWO-YEAR SUSPENSION
IN RE LAUREL R. KUPKA
NO. 122,053—FEBRUARY 28, 2020

FACTS: A hearing panel determined that Kupka violated KRPC 1.1 (competence); 1.3 (diligence); 1.4(a) and (b) (communication); 4.1(a) (truthfulness in statements to others); 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); 8.4(d) (engaging in conduct prejudicial to the administration of justice); and 8.4(g) (engaging in conduct adversely reflecting on lawyer's fitness to practice law). The charges arose after Kupka expanded her law practice to include domestic cases while also taking on extra duties after other attorneys at the firm resigned. Kupka's workload grew even heavier around the time her first child was born, and she lost administrative support. The heavy workload, combined with a lack of any support, resulted in Kupka feeling anxious and depressed. As those conditions worsened, Kupka failed to adequately represent clients. She did not file things despite saying that she did, she altered documents in an attempt to make them look file-stamped, and she falsified judge's signatures. Kupka also failed to communicate with clients, and when she did speak with them, she lied about the status of their cases.

HEARING PANEL: Kupka self-reported her misconduct, in addition to another complaint being filed. She fully cooperated and admitted to the misconduct. The hearing panel acknowledged that Kupka engaged in dishonest conduct by cutting and pasting file stamps onto documents and forging clerk and judge signatures. But her actions were driven by an overwhelming workload, a lack of supervision or assistance, and depression. She fully admitted her misconduct and cooperated with the disciplinary process. The disciplinary administrator asked for a two-year suspension, and that the suspension be suspended after one year so that Kupka could complete a one-year term of probation. Kupka asked that she be allowed to continue practicing under the terms of a probation plan. The hearing panel, however, reiterated its position that dishonesty cannot be corrected by probation alone. The hearing panel recommended that Kupka be suspended for two years, but that she be returned to active practice after serving six months of the suspension, with a two-year term of probation to follow.

HELD: The panel's factual findings and conclusions of law were deemed admitted. The court agreed that a two-year suspension was the appropriate discipline. Kupka will be allowed to apply for reinstatement after completing nine months of the suspension. A minority of the court would have required a longer period of suspension before applying for reinstatement.

 

criminal 

constitutional lawcriminal lawcriminal procedurejury instructionsprosecutorssentences
state v. becker
ford district court—affirmed in part, vacated in part
NO. 118,235—february 28, 2020

FACTS: On evidence—including Becker’s confession, jury found him guilty of first-degree premeditated murder. Sentence included a Hard 25 life prison term and lifetime postrelease supervision. On appeal, he claimed prosecutor’s comments during closing argument regarding plea deals taken by codefendants was error. Becker also claimed the district court erred in failing to instruct jury on lesser included crimes, and on voluntary intoxication. He also claimed for first time that failure to instruct on lesser included crimes violated his constitutional rights to due process and jury trial. He claimed cumulative error denied him a fair trial, and claimed the district court erred in ordering lifetime postrelease supervision.

ISSUES: (1) Prosecutorial error; (2) jury instructionslesser included offenses; (3) Constitutional claims; (4) jury instructionvoluntary intoxication; (5) cumulative error; (6) sentencing

HELD: Prosecutor’s comments did not fall outside wide latitude afforded prosecutors, and was not an attempt to obtain a conviction in a manner that offended Becker’s right to a fair trial. Taken in context, prosecutor’s comments did not direct jury to ignore the plea agreements or to give them no weight in determining witness credibility. Instead, prosecutor was rebutting attacks in defense counsel’s closing argument regarding a codefendant’s favorable plea agreement.

District court did not commit reversible error under K.S.A. 2018 Supp. 22-3414 by failing to instruct jury on lesser included offenses of second-degree murder and voluntary manslaughter. Both instructions would have been legally appropriate. Even if error is assumed without decidingthat a second-degree intentional murder instruction was factually appropriate, the error was harmless under facts in this case. And no sudden quarrel factually supported an instruction for voluntary manslaughter.

Court considers Becker’s newly raised constitutional claims. Consistent with Beck v. Alabama, 447 U.S. 625 (1980), and State v. Love, 305 Kan. 716 (2017), no merit to Becker’s  claim that the lack of a lesser included alternative required jury to render an all-or-nothing verdict in violation of Becker’s due process rights. Also, based on Love and a 6th Circuit Court of Appeals case, district court did not preempt function of jury in violation of Becker’s right to a jury trial.

Under facts in this case, district court did not err in failing to instruct jury on voluntary intoxication. Evidence viewed in light most favorable to Becker establishes methamphetamine consumption but not intoxication to impair his ability to form the requisite intent. Nor did parents’ unsworn statements at sentencing hearing establish a level of impairment at time of the crime that would have warranted a voluntary intoxication instruction.

No cumulative error in trial having only one assumed harmless error.

Sentencing court’s order of lifetime postrelease supervision is vacated. District court has no authority to order a term of postrelase supervision in conjunction with an off-grid, indeterminate life sentence.

STATUTES: K.S.A. 2018 Supp. 21-5202(h), 5402(a), -6620(c)(2)(A), 22-3414, -3414(3), -3504, 3504(1), -3601(b)(3), -3601(b)(4); K.S.A. 2015 Supp. 21-5109(b)(1); K.S.A. 2014 Supp. 21-5205(b); K.S.A. 60-2106(c)

appeals—criminal law—criminal procedure—evidence—jury instructions
state v. gray
sedgwick district court—affirmed
NO. 117,747—february 28, 2020

FACTS: Jury convicted Gray of first-degree premeditated murder, rape, and aggravated burglary. During trial, he unsuccessfully challenged district court’s admission under K.S.A. 60-455 of evidence of a previous rape. On appeal, argued for first time that under the identical offense doctrine, the district court should have sentenced him for intentional second-degree murder. Gray next argued the district court abused its discretion in finding evidence of the prior rape was more probative than prejudicial because no juror would have been able to follow the limiting instruction. Gray further claimed the district erred in failing to instruct jury on intentional second-degree murder as a lesser included offense of first-degree murder.

ISSUES: (1) Newly raised claim; (2) K.S.A. 60-455 evidence; (3) jury instructionlesser included offense

HELD: Gray’s identical offense doctrine claim is not considered. K.S.A. 2019 Supp. 21-6820(e)(3) does not support review because Gray does not challenge the classification of his crime or conviction, and no exception to the preservation rule is utilized.

Jury members are presumed to follow instructions, including limiting instructions regarding the admission and use of prior crimes evidence. Gray failed to offer any facts or legal authority to suggest otherwise.

Absence of an instruction on second-degree intentional murder as a lesser included offense of premeditated first-degree murder was not clear error. The instruction would have been legally appropriate, but even if factual appropriateness is assumed, the error was harmless in light of overwhelming evidence of premeditation.

STATUTES: K.S.A. 2019 Supp. 21-6820(e)(3), 60-455(a), -455(b), -455(d); K.S.A. 2015 Supp. 21- 5402(a)(1), -5403(a)(1); K.S.A. 60-455

 

Kansas Court of Appeals

Civil

MECHANIC'S LIENS
IN RE LIEN AGAINST THE DISTRICT AT CITY CENTER, LLC
JOHNSON DISTRICT COURT—REVERSED AND REMANDED
NO. 
121,184—FEBRUARY 28, 2020

FACTS: The District at City Center, LLC, hired a construction company to build a mixed-use development. The construction company hired Kansas City Steel Werx, Inc. as a steel and labor subcontractor. Change orders from KC Steel to the general contractor added approximately $25,000 to the cost of the contract. To ensure complete payment, KC Steel filed a mechanic's lien against the development citing unpaid labor and materials of approximately $400,000. The itemizations filed with the lien included documentation but was incomplete. Instead of challenging the lien as a whole or specific items, the contractor filed a motion claiming the lien was "fraudulent" and asking the court to set it aside. Without waiting for a response, the district court granted the motion and removed the lien. KC Steel appealed.

ISSUE: (1) Ability of the district court to find that the lien was "fraudulent"

HELD: A party asserting a mechanic's lien must strictly comply with our mechanic's lien statutes before that lien becomes enforceable. K.S.A. 2019 Supp. 58-4301 allows a district court to quickly review a lien's status to determine whether it is fraudulent. Legislative history shows this statute was enacted to prevent abuses by militias and common-law groups. The quick review is intended to allow an efficient way to remove an obviously bogus lien that is being used as a tool of harassment. The district court improperly equated an invalid lien with a fraudulent one. The document filed by KC Steel is recognized by Kansas law, and the district court erred by ruling that the lien was fraudulent. The real question is whether KC Steel strictly complied with the mechanic's lien procedures enough to create a valid lien; that is the issue that must be decided on remand.

STATUTES: K.S.A. 2019 Supp. 58-4301, -4301(a), -4301(b), -4301(c), -4301(e), -4302; K.S.A. 60-1102, -1102(a), -1103(a), -1105, -1106, -1108

WORKERS COMPENSATION
AIKINS V. GATES CORPORATION
WORKERS COMPENSATION APPEALS BOARD—AFFIRMED
NO. 120,905—FEBRUARY 28, 2020

FACTS: Aikins was injured in a car accident while leaving work. In May 2018, an ALJ awarded Aikins compensation for her injuries. One week later, she served Gates with a demand for compensation based on that award. The next day, Gates filed for review with the Workers Compensation Board of Appeals. Before the Board could decide the appeal, Aikins filed a motion for penalties with the ALJ because Gates had not yet paid out her award. The ALJ held a hearing and ruled that Aikins was entitled to a penalty payment because Gates had not yet paid as required by K.S.A. 44-512a and had not obtained a stay of the judgment. Gates appealed the imposition of the penalty, arguing that compensation was not yet due so no penalty could accrue. The Board agreed, and Aikins appealed.

ISSUE: (1) Whether payment is due such that penalties could attach

HELD: K.S.A. 44-512a allows claimants to apply for a civil penalty if payments are overdue. In this case, the only issue to determine is whether Aikins's award was due. Statutes clarify that payment of an award is not due until at least 30 days after the Board hears the parties' arguments. There is no statute which requires the employer to seek and receive a stay of judgment; a stay is only required after payment obligations have accrued. Aikins was not due any payment until after the Board ruled on Gates's appeal, and the Board properly reversed the ALJ's award of penalties.

STATUTES: K.S.A. 2019 Supp. 44-551, -551(l)(1), -551(l)(2)(A), -551(l)(2)(B), -551(l)(2)(C), -551(p); K.S.A. 44-512a, -512a(a)

HABEAS CORPUS—MOOTNESS
BURCH V. HOWARD
PAWNEE DISTRICT COURT—AFFIRMED
NO. 120,704—FEBRUARY 28, 2020

FACTS: Burch was committed to the Sexual Predator Treatment Program in 2002. After more than a decade in the program, Burch filed a K.S.A. 60-1501 petition which raised several concerns. Relevant to this case was his claim that the SPTP does not provide adequate treatment for securing an eventual release from the Program. The SPTP operated on a leveled system where treatment was provided in phases, and participants gained independence by completing levels. At a hearing before the district court, the evidence showed that Burch has not participated in any meaningful treatment since July 2009. Based on this lack of participation, the district court ruled that Burch failed to meet his burden to prove shocking or intolerable conduct and denied the petition. Burch appeals.

ISSUES: (1) Mootness; (2) adequacy of treatment provided in the SPTP

HELD: Although the treatment system is different now from when Burch filed his petition, the changes are more style than substance and do not render this appeal moot. Because he declined treatment, Burch does not have standing to challenge the adequacy of the SPTP. The SPTP is consistent with the statutory criteria of the Sexually Violent Predator Act and does not shock the conscience.

STATUTES: K.S.A. 2019 Supp. 59-29a06, -29a07(a), -29a08(a), -29a08(d), -29a08(f); K.S.A. 60-1501

 

criminal

criminal law—criminal procedure—restitution—sentences—statutes
state v. henry
sedgwick district court—affirmed
no. 119,895—february 28, 2020

FACTS: Henry was charged and convicted on one count of felony theft for stealing money from store deposits on 12 different occasions while employed as armored truck driver. District court imposed 60 months’ probation and ordered payment of $78,315 in restitution. On appeal, Henry claimed insufficient evidence supported his conviction because the single larceny doctrine did not apply to thefts that occurred on 12 separate occasions, and each of the individual takings failed to meet the $25,000 threshold of the felony theft charged. He also argued the restitution plan was unworkable because it would take over 43 years to complete, making a multi-decade term of probation per se unreasonable.

ISSUES: (1) Single larceny doctrine; (2) restitution

HELD: Henry’s theft conviction is affirmed. The single larceny doctrine is a rule of evidence and may be invoked whenever the facts warrant it. Disagreement stated with legal conclusion in State v. Ameen, 27 Kan.App.2d 181, rev. denied 269 Kan. 934 (2000). The doctrine is not only limited to instances where multiple misdemeanor takings are charged as a single felony but also permits multiple instances of felony takings to be charged as a single higher severity level felony.  On evidence in this case, Henry should have been charged in the alternative with a lower severity level theft for each separate taking, and the jury should have been instructed in the alternative on the single larceny doctrine and the elements of each lesser theft for each taking separately, but Henry waived or abandoned any claims of error concerning the charging document or instructions. Sufficient evidence supported the key factual determination that Henry’s acts arose out of a single incriminating impulse or plan.

District court imposed a workable restitution plan. Henry admitted the monthly payments are workable, and K.S.A. 2019 Supp. 21-6608(c)(7) explicitly allows for a term of probation to be extended indefinitely to secure payment of restitution.

STATUTES: K.S.A. 2019 Supp. 21-6604(b)(1), -6608(c)(7); K.S.A. 2016 Supp. 21-5801(a)(1), -5801(b)(2), -5801(b)(3), -5801(b)(4)

Tags:  appeals  attorney discipline  Constitutional law  criminal law  criminal procedure  evidence  habeas corpus  jury instructions  mechanic's liens  mootness  prosecutors  restitution  sentences  statutes  workers comp 

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December 6, 2019 Digests

Posted By Administration, Monday, December 9, 2019

Kansas Supreme Court

 

Attorney Discipline

ONE-YEAR SUSPENSION, STAYED DURING AN EXTENDED PROBATION
IN RE ANDREW M. DELANEY
NO. 121,208
DECEMBER 6, 2019

FACTS: A hearing panel determined that Delaney violated KRPC 1.1 (competence); 1.3 (diligence); 1.4(a) (communication); and 1.7(a) (conflict of interest). Delaney was placed on probation in November 2014 and remained on probation at the time these matters arose. The allegations of new discipline involved Delaney's representation of a client in a divorce action and his failure to free his client from debt on a vehicle retained by the ex-spouse. In addition, Delaney failed to properly negotiate a plea agreement on behalf of three other clients, none of whom were aware of the potential conflict of interest.

HEARING PANEL: The hearing panel found facts sufficient to sustain all alleged rule violations. The panel found several aggravating factors, including prior discipline. But there were also mitigating circumstances such as the absence of a dishonest motive and some mental health issues. The disciplinary administrator recommended a one-year suspension, with that suspension suspended so that Delaney's probation could be extended for two years. This recommendation was joined by Delaney and his counsel, and the panel determined that the probation plan proposed by Delaney was workable and appropriate.

HELD: In the absence of any exceptions, the hearing panel's findings of fact and conclusions were accepted. After hearing arguments, a majority of the court agreed that the probation plan proposed by the disciplinary administrator and Delaney was appropriate. Delaney's license to practice law in Kansas was suspended for one year, with that suspension stayed in favor of a two-year term of probation. A minority of the court would have imposed a less severe sanction.

ORDER OF DISBARMENT
IN RE JOAN M. HAWKINS
NO. 121,064—DECEMBER 6, 2019

FACTS: After Hawkins failed to participate or appear, a hearing panel found that Hawkins violated KRPC 1.3 (diligence); 1.15(a) and (b) (safekeeping property); 1.16(d) (termination of representation); 8.1(b) (failure to respond to disciplinary authority); Rule 207(b) (failure to cooperate in disciplinary investigation); Rule 211(b) (failure to answer in disciplinary proceeding); and Rule 218(a) (failure to file motion to withdraw upon suspension). The allegations arose after Hawkins failed to file pleadings on behalf of clients. In addition, Hawkins was suspended but failed to withdraw or take the steps required of her during the suspension. In addition, Hawkins made deposits into her attorney trust account even after she was suspended, and she paid personal bills directly out of her trust account.

HEARING PANEL: Hawkins failed to appear or participate in the hearing panel process. This failure, combined with the evidence presented to the hearing panel, resulted in the disciplinary administrator seeking discipline of either indefinite suspension or disbarment. The hearing panel recommended that Hawkins be disbarred.

HELD: The Clerk of the Supreme Court made repeated efforts to serve Hawkins with the notice of hearing. All certified mail was returned unclaimed and an attempt to make personal service was similarly unsuccessful. The court found that adequate notice was given of both the formal complaint and the hearing. Because Hawkins did not participate, panel's findings of fact and conclusions of law were deemed admitted. And in the absence of an appearance at the disciplinary hearing, the court adopted the disciplinary administrator's recommendation that Hawkins be disbarred.

Court Reporter Discipline

PUBLIC REPRIMAND
IN RE APRIL C. SHEPARD
CCR NO. 1318 – DECEMBER 6, 2019

FACTS: April Shepard works as a court reporter in Wyandotte County. She previously served in that capacity in Shawnee County. In June 2018, the State Board of Examiners of Court Reporters filed a formal complaint against Shepard alleging a violation of Board Rule No. 9.F.9. The facts showed that Shepard worked as a court reporter on a high-profile murder trial. After the defendant's conviction was overturned on appeal, a newspaper article quoted from Facebook posts made by Shepard in which she opined that the defendant was guilty and would be convicted again. Shepard admitted that she made the posts but defended herself by claiming that she behaved in an impartial manner during the trial and noted that she no longer worked for Shawnee County.

BOARD: The Board's disciplinary counsel asked that Shepard be subjected to public discipline, in order to provide transparency and increase public confidence in the profession. Shepard asked that any discipline be private, noting that she stipulated to the rule violation and arguing that her conduct was not severe enough to warrant public discipline. After considering arguments, the Board recommended that Shepard receive a public reprimand.

HELD: In the absence of objections, the Board's findings and conclusions were adopted. The court found that Shepard's conduct was egregious and damaging to the profession, but also noted that she cooperated with the investigation and admitted to wrongdoing. The court agreed that a public reprimand was the appropriate discipline.

Civil

EMINENT DOMAIN—INVERSE CONDEMNATION—JURISDICTION
GFTLENEXA, LLC V. CITY OF LENEXA
JOHNSON DISTRICT COURT—AFFIRMED
NO. 119,278—DECEMBER 6, 2019

FACTS: Through a series of leases and subleases, GFTLenexa ended up as the landlord of a Bridgestone tire dealer. In October 2013, the City of Lenexa filed a condemnation action with the goal of making street improvements and creating a permanent public utility easement. The district court granted the condemnation request and paid appropriate compensation to affected parties; neither GFTLenexa nor Bridgestone participated and neither was awarded compensation. A year later, Bridgestone sought declaratory judgment against GFTLenexa claiming it was entitled to reduced rent because the property had been partially condemned. The district court dismissed the action on GFTLenexa's motion for summary judgment on the theory that GFTLenexa did not receive any proceeds from the condemnation. The Court of Appeals reversed and remanded and on remand, the district court ordered GFTLenexa to both reduce Bridgestone's monthly rent and refund past overpayments. This decision prompted GFTLenexa to file an inverse condemnation action against the City for a loss of its intangible property rights. The district court granted the City's motion for summary judgment. GFTLenexa filed a notice of appeal to the Kansas Supreme Court.

ISSUES: (1) Jurisdiction; (2) need for inverse condemnation

HELD: Inverse condemnation actions are not creatures of statute. K.S.A. 2018 Supp. 26-504 requires that appeals in eminent domain cases go directly to the Kansas Supreme Court. Inverse condemnation actions are not eminent domain actions, and cases involving an inverse condemnation must be filed in the court of appeals. Even though the case was filed in the wrong court, the court exercises its power of concurrent jurisdiction to rule on the controversy before it rather than transfer it to the court of appeals. The eminent domain petition did not name GFTLenexa as a party and GFTLenexa chose not to participate in the process. The City's failure to name GFTLenexa is not determinative; GFTLenexa could have—and should have—sought to intervene in the condemnation. Requiring the City to pay again in an inverse condemnation action violates the undivided fee rule.

STATUTES: Kansas Constitution, Article 3, § 3; K.S.A. 2018 Supp. 26-504; K.S.A. 20-3018(a), 26-517, 60-2101(a), -2101(b)

criminal 

criminal procedure—motions—sentences—statutes
state v. carpenter
sedgwick district court—affirmed; court of appeals—affirmed
no. 115,713—december 6, 2019

FACTS: Complaint charged Carpenter of burglary, theft, and criminal damage to property. A separate complaint charged February 2008 offenses of aggravated indecent liberties with a child and criminal sodomy. Carpenter convicted on all charges. District court’s pronouncement stated a 55 month underlying sentence and 36 months of post-release supervision, but journal entry reflected lifetime postrelease supervision in case involving sexually violent offenses. Probation revoked two years later, with imposition of underlying sentence and lifetime postrelease supervision. Carpenter filed motion to correct illegal sentence by confirming the orally pronounced sentence of 36 months’ postrelease supervision, distinguishing postrelease for persons sent to prison versus those granted probation. State argued the lifetime postrelease supervision was mandatory and the 36-month supervision itself was illegal. District court agreed and denied the motion. Court of Appeals affirmed in unpublished opinion. Review granted. While appeal was pending, parties ordered to show cause why sole issue on review was not controlled by State v. Brook, 309 Kan. 780 (2019).

ISSUE: (1) Lifetime postrelease supervision under K.S.A. 22-3717(d)(1)

HELD: District court and Court of Appeals are affirmed based on Brook. Due to nature and timing of his offenses, Carpenter is subject to lifetime postrelease supervision under K.S.A. 22-3717. For determining length of postrelease supervision, Legislature clearly distinguished between categories of sexually violent offenses in K.S.A. 22-3717(d)(1)(D) and (G) based on date of their commission, not by sentences of probation versus prison. K.S.A. 22-3717(d)(1)(G) applies to persons convicted of a sexually violent crime committed on or after July 1, 2006. There are no persons convicted of a sexually violent crime on or after that date to whom both subsection K.S.A. 22-3717(d)(1)(A) and subsection (d)(1)(G) apply. Construing the statute as a whole and giving effect to all subsections, there is no conflict or ambiguity in K.S.A. 22-3717(d)(1).

STATUTES: K.S.A. 2015 Supp. 22-3717(d)(1); K.S.A. 2013 Supp. 22-3717(d)(1); K.S.A.20-3018(b), 21-4704, 22-3504, -3717, -3717(d)(1), -3717(d)(1)(A), -3717(d)(1)(G), -3717(d)(2)(C), -3717(d)(2)(D), 60-2101(b)

criminal law—criminal procedure—evidence—jury instructions
state v. claerhout
johnson district court—affirmed; court of appeals—affirmed
no. 115,227—december 6, 2019

FACTS: Claerhout was convicted of reckless driving and second-degree murder for unintentional but reckless homicide. District court allowed State to introduce Claerhout’s prior diversion agreement for purpose under K.S.A. 60-455(b); allowed an officer to evaluate the relative speeds of the two vehicles at the time of collision; and denied Claerhout’s request for voluntary intoxication instruction. On appeal Claerhout challenged:  (1) admission of the K.S.A. 60-455 evidence; (2) officer’s qualification to testify about scientific and mathematical conclusions; and (3) denial of the requested instruction. Court of appeals affirmed, 54 Kan.App. 2d 742 (2017). Review granted on all issues.

ISSUES: (1) Evidence of prior diversion agreement; (2) expert testimony; (3) voluntary intoxication instruction

HELD: Claerhout’s diversion agreement had probative value that outweighed its prejudicial effect. Statutory requirements and specific details outlined in a diversion for driving under the influence essentially serve the same purpose as a conviction in showing its relevance. In this case, any deficiency in district court’s abbreviated evaluation of possible prejudicial effect was harmless. No need at this time to decide how little or how much analysis a district count must display to satisfy due process mandates in State v. Boysaw, 309 Kan. 526 (2019), but courts are encouraged to state on the record the factors considered in weighing the admissibility of K.S.A. 60-455 evidence.

Kansas Supreme Court has not previously ruled on the degree to which an expert must be able to demonstrate knowledge of the principles underlying the expert’s expertise. It is not necessary that an expert witness demonstrate expertise in every theory, principle or scientific discipline underlying the knowledge, skill, experience, training or education that may qualify an expert witness to give testimony. Background of officer in this case sufficed to meet the statutory requirements for qualification as an expert witness.

The requested voluntary intoxication instruction was not factually appropriate. Voluntary intoxication is not a defense to reckless second-degree murder. Claerhout’s theory, that evidence of his intoxication tends to show he could not attain a reckless state of mind because of impaired mental function, is rejected. Instead, cited cases show common thread of courts treating intoxication as evidence of recklessness.

STATUTES: K.S.A. 2018 Supp. 8-1567(i)(1), -1567(i)(6), 21-5403(a)(2), -5403(b)(2), 60-455(a), -455(b), -456(b); K.S.A. 2016 Supp. 60-455(b); K.S.A. 60-455

criminal procedure—motions—postconviction remedies—statutes
state v. fox
cherokee district court—affirmed
No. 115,247—december 6, 2019

FACTS: In 2013, Fox filed a K.S.A. 22-3210 motion to withdraw his 1982 guilty plea, arguing in part for equitable tolling of the limitation period. District court denied the motion as untimely filed with no showing of excusable neglect. Fox appealed, further arguing he had been imprisoned in Florida for several years without access to a phone or library materials about Kansas law. He also claimed manifest injustice, citing ineffective assistance of counsel, duplicitous charges, and jurisdictional claims.

ISSUE: (1) Statue of limitations—excusable neglect

HELD: Grace period in 2009 amendment to K.S.A. 22-3210 allowed Fox until April 2010 to file his motion. District court did not abuse its discretion in finding Fox did not establish excusable neglect to permit his untimely filing. No facts support equitable tolling of the limitation period where Fox was held in a Kansas prison about seven years before the statute of limitations ran.  No need to address whether Fox established manifest injustice.

STATUTES: K.S.A. 2018 Supp. 22-3210, -3210(d)(2), -3210(e)(1), -3210(e)(2), -3601(b); K.S.A. 60-1507

criminal procedure—juries—jury instructions—motions—trials
state v. pruitt
Butler District Court—affirmed
NO. 118,448—december 6, 2019

FACTS: Pruitt was convicted of first-degree premeditated murder. On appeal he claimed: (1) prosecutor error during closing argument; (2) judge should have instructed jury on lesser included offenses of reckless second-degree murder and reckless voluntary manslaughter, (3) erroneous instructions foreclosed jury’s power of nullification; (4) a new trial should have been granted because one juror slept during part of the proceedings; and (5) cumulative error denied him a fair trial.  

ISSUES: (1) Prosecutorial error; (2) instructions on lesser included offenses; (3) instructions regarding jury nullification; (4) motion for new trial—juror misconduct; (5) cumulative error

HELD: Prosecutor’s statement in summing up testimony about the alleged murder weapon, “This seems to be the shotgun, folks. I don’t think there’s a lot of question about that at this point,” was an impermissible personal opinion; but no reversible error in this case. Prosecutor’s statement that victim deserved jurors’ “consideration” was not error where statement’s context demonstrates that prosecutor was not attempting to invoke jury’s sympathy. Prosecutor’s statement, “Folks, if you’re convinced beyond a reasonable doubt that those three elements exist, you must find the defendant guilty of murder in the first degree, as he has been charged,” was not an impermissible misstatement of the law because it forbade jury nullification. A prosecutor’s closing argument is distinguished from court instructions.  

Even if error is assumed in district judge’s failure to give sua sponte two reckless homicide instructions, no reversible clear error on facts in this case.

District judge’s instructions to jury did not direct a verdict of conviction or prevent jury nullification, and were correct statements of the law and not erroneous under State v. Boothby, 310 Kan. 619 (2019).

Under facts in this case, district judge did not abuse his discretion in finding no fundamental failure due to jury misconduct occurred in defendant’s trial.

Errors found or assumed in this case did not cumulatively prejudice Pruitt and deprive him of a fair trial.   

STATUTE: K.S.A. 2018 Supp. 21-5109(b)(1), -5202(c)

Tags:  attorney discipline  Butler District  Cherokee District Court  court reporter discipline  criminal law  criminal procedure  eminent domain  evidence  inverse condemnation  Johnson District Court  juries  jurisdiction  jury instructions  motions  postconviction remedies  sentences  statutes  trials 

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September 27, 2019 Digests

Posted By Administrator, Monday, September 30, 2019

Kansas Supreme Court

Attorney Discipline

PUBLISHED CENSURE
IN RE JOSHUA T. MATTHEWS
NO. 120,924—SEPTEMBER 27, 2019

FACTS: After a stipulation was made, a hearing panel found that Matthews violated KRPC 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation), 8.4(g) (conduct adversely reflecting on lawyer's fitness to practice law), and Supreme Court Rule 211(b) (failure to file answer in a disciplinary proceeding). Matthews failed to satisfy the CLE requirements for the 2017 reporting year. In an attempt to come in to compliance, Matthews enrolled in a day-long program in Missouri. While attending the live programming, Matthews watched on-demand CLE programs over the course of five hours. The affidavits submitted showed that Matthews attended more than eight hours of CLE in one day, which is not permitted by Kansas rules. When questioned, Matthews initially denied watching video on-demand programs while also attending in-person programming. After his inaccuracies were questioned, Matthews self-reported his conduct to the disciplinary administrator.

HEARING PANEL: Matthews stipulated to the rule violations. Matthews had prior rule violations and the panel found dishonest actions after lying about his attendance. Based on the nature of the misconduct, the disciplinary administrator recommended that Matthews receive a public censure. Matthews asked that he be informally admonished.

HELD: The hearing panel's findings of fact and conclusions were accepted. In light of his prior discipline, the court rejected Matthews' request for an informal admonition. The court accepted the disciplinary administrator's recommendation for published censure.

 

ORDER OF SUSPENSION
IN RE KEVIN P. SHEPHERD
NO. 120,875—SEPTEMBER 27, 2019

FACTS: A hearing panel determined that Shepherd violated KRPC 1.1 (competence), 1.3 (diligence), 1.4(a) (communication), 1.15(a) (safekeeping property), 1.15(d)(1) (preserving client funds), 1.16(a)(1) (withdrawing from representation), 8.1(a) (false statement in connection with disciplinary matter), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice). Complaints arose regarding Shepherd's conduct after he failed to file an appellate brief, causing the appeal to be dismissed. Despite repeated promises that he would seek to have the appeal reinstated, Shepherd failed to act. Shepherd also had business checks returned for insufficient funds in diversion cases. This prompted an audit of his bank accounts, which revealed irregularities.

HEARING PANEL: The hearing panel found evidence sufficient enough to sustain violations of the KRPC. When considering the appropriate discipline, the panel noted that Shepherd had a history of prior offenses, including one from 2009 which resulted in a three-year suspension of Shepherd's license. There were also substantial mitigating factors present, including mental health struggles which contributed to the misconduct. Shepherd made restitution to his clients and enjoys the support of his local bench and bar. The disciplinary administrator recommended that Shepherd be indefinitely suspended. Shepherd asked that he be placed on probation, and he began working on some of his proposed probationary terms prior to the hearing. The hearing panel determined that Shepherd's dishonest conduct could not be cured by probation. Rather, the hearing panel recommended that Shepherd be suspended for two years, and that he be allowed to apply for reinstatement after one year.

HELD: The hearing panel's findings of fact and conclusions were deemed admitted. At the hearing, citing Shepherd's notable progress, the disciplinary administrator asked that Shepherd be indefinitely suspended but that the suspension be stayed to allow Shepherd to serve a five-year term of probation. The court found that Shepherd's misconduct was too serious to be cured by probation. A majority of the court imposed a two-year suspension, but stipulated that Shepherd should be allowed to seek reinstatement after one year. Other members of the court would impose either a more or less severe punishment.

 

Kansas Court of Appeals

 

Civil

CONSTRUCTION CONTRACTS—LEASES
DRYWALL SYSTEMS, INC V. A. ARNOLD OF KANSAS CITY
JOHNSON DISTRICT COURT—AFFIRMED
NO. 119,091—SEPTEMBER 27, 2019

FACTS: A. Arnold entered a five-year lease for part of a building which was owned by BMJ. There were other tenants using part of the building, so before A. Arnold could use the space, it needed to have a partition wall built. Drywall Systems, Inc. submitted the winning bid for the project. Drywall completed the work, but A. Arnold did not pay and Drywall sued both A. Arnold and BMJ for breach of contract, unjust enrichment, and a mechanic's lien foreclosure. The district court found for Drywall on the breach of contract action. But it refused to award prejudgment interest and attorney fees because BMJ, the property owner, was not a party to the contract and A. Arnold, who was a party, was not an "owner" as defined by the Kansas Fairness in Private Construction Contract Act. Drywall appealed.

ISSUE: (1) Liability under the Act

HELD: Drywall did prevail on a contract claim under the Act. But the clear and unambiguous language in the Act shows that only an "owner" can be liable for prejudgment interest and attorney fees. It is undisputed that A. Arnold is not the owner because it only holds a leasehold interest in the property. Without status as an owner, Drywall cannot recover from A. Arnold.

STATUTE: K.S.A. 2018 Supp. 16-1802(e), -1803, -1803(d), -1803(e), -1804, -1805, -1806

 

VEHICLE LICENSURE
CENTRAL RV V. KANSAS DEPARTMENT OF REVENUE
FRANKLIN DISTRICT COURT—AFFIRMED
NO. 119,744—SEPTEMBER 27, 2019

FACTS: A travel trailer insured by Safeco Insurance was damaged in an accident in Oregon. Safeco obtained a salvage title from the State of Oregon which carried a "TOTALED" designation. Central RV bought the trailer from Safeco. When Central RV titled the vehicle with the State of Kansas it received a rebuilt salvage title. Central RV asked the Department of Revenue to reconsider and give it a clean title. The Department of Revenue refused, so Central RV filed suit hoping to force a title change. The district court sided with the Department of Revenue, and Central RV appealed.

ISSUE: (1) The type of title required

HELD: The trailer met the Kansas statutory definition for a rebuilt salvage vehicle that should receive a rebuilt salvage title. The fact that the salvage status was issued by another state does not keep the trailer from being a rebuilt salvage vehicle. In fact, the statute exists to prevent people from title washing vehicles which were totaled in other states.

STATUTE: K.S.A. 2018 Supp. 8-127, -135, -126(ll), -126(mm), -126(qq), -126(rr), -197, -197(b)(2), -197(b)(5)

 

DIVORCE—MILITARY RETIREMENT
IN RE MARRIAGE OF THRAILKILL
GRAHAM DISTRICT COURT—AFFIRMED IN PART AND DISMISSED IN PART
NO. 118,246—SEPTEMBER 27, 2019

FACTS: Doug and Denise Thrailkill were both in the military, although Doug continued his career until he retired as a commissioned officer. Because of the length of his service, Doug began receiving retirement pay as soon as he retired. Doug worked a civilian job for a bit, but ultimately quit and received military disability. Denise filed for divorce in 2016. The proceedings were bifurcated and the decree was handed down before the property settlement was complete. After a hearing on property settlement issues, the district court equally divided the parties' retirement pay. The court awarded maintenance to Denise and ordered Doug to pay half of the balance on a loan that was taken out to help finance their son's education. The district court also had to address Doug's Survivor Benefit Plan, which involved a survivor benefit for a spouse after a military member's death. Doug appealed.

ISSUES: (1) Authority to rule on Survivor Benefit Plan, (2) calculation of maintenance and child support, (3) Doug's obligation on the student loan, (4) postjudgment issues

HELD: After a 1986 statutory amendment, a divorce court can order a service member to retain his or her former spouse as the Survivor Benefit Plan beneficiary, even after divorce. Because Doug was married to Denise when he began receiving retirement pay, Denise was included in spouse coverage. And now, because of the divorce, Doug can elect former-spouse coverage for Denise. There is no statutory limitation to a state divorce court's ability to make orders regarding former-spouse coverage. The district court must consider all income when making maintenance and child support decisions. A portion of each party's retirement pay must be considered as income. In addition, the maintenance award served to equalize the parties' income for the next eight years. Denise borrowed $22,000 towards her son's educational expenses. At the time of the hearing on financial matters, the balance was $11,000. The student loan was correctly treated as a marital debt. The district court correctly ordered each party to pay half of the remaining balance. Doug cannot appeal issues involving postjudgment orders because they were not mentioned in the notice of appeal, and the court does not have jurisdiction to consider them.

STATUTES: 10 U.S.C. § 1447, § 1448, § 1450, § 1450(f)(3); K.S.A. 2018 Supp. 23-2801(a), -2802(b), -2902(a), -3001

 

MEDICAL MALPRACTICE
BROWN V. TROBOUGH
SHAWNEE DISTRICT COURT—AFFIRMED
NO. 119,501—SEPTEMBER 27, 2019

FACTS: Katy Brown went into labor in September 2015. Her labor was managed by Dr. Schuchmann, a resident. Dr. Trobough was the on-call physician; as such, he was also Dr. Schuchmann's faculty advisor and supervisor. During Katy's labor process, even though he was informed that Katy had a high risk pregnancy, Dr. Trobough left the hospital and was updated by Dr. Schuchmann via text message. Dr. Trobough eventually arrived at the hospital 10 minutes before Katy's son, Carter, was born. Unfortunately, Carter was critically ill when born and suffered from lack of oxygen. Dr. Trobough later texted another physician that during labor, nurses were only monitoring Katy's heart rate and not Carter's, missing the fact that he was in distress. Katy and her husband sued Drs. Schuchmann and Trobough and the hospital for negligence. The hospital and Dr. Schuchmann settled. After that was done, the Browns were given permission to amend their petition to include as defendants Dr. Teply, Lincoln Center, the medical practice, and the Kansas University Medical Education Foundation. Dr. Teply was the training site director for KU Medical School at Lincoln Center. The district court granted Lincoln Center's motion to dismiss, finding that it was barred as derivative by K.S.A. 40-3403(h). Dr. Teply's motion for dismissal was similarly granted after the district court found that Dr. Teply had no independent duty to Carter.

ISSUE: (1) Whether claim is barred by K.S.A. 40-3403(h)

HELD: The plain language of K.S.A. 40-3403(h) bars Brown's claim against Dr. Teply. The statute applies regardless of whether the plaintiffs seek to apply a corporate negligence theory. Any claim against Dr. Teply, even if it seeks to hold him liable for his failure to enforce the resident supervision rule, is derivative of the other doctors' alleged negligence. Had Drs. Schuchmann and Trobough not allegedly injured Carter there would be no claim against Dr. Teply. As a result, K.S.A. 40-3403(h) prevents Brown from bringing suit against Dr. Teply.

STATUTE: K.S.A. 40-3401(f), -3403(a), -3403(h)

 

criminal

constitutional law—criminal law—JUveniles—sentences—statutes
state v. N.R.
reno district court—affirmed
NO. 119,796—september 27, 2019

FACTS: 14-yr.-old N.R. was adjudicated a juvenile offender in 2006. Magistrate granted probation and ordered registration under Kansas Offender Registration Act (KORA) as a sex offender. Prior to the 5-year registration period expiring, the legislature amended KORA to require lifetime registration for N.R.’s age and offense. N.R. was charged in 2017 of failing to register. He moved to dismiss, arguing lifetime registration violated ex post facto and cruel and unusual constitutional protections. District court denied the motion based on controlling Kansas Supreme Court precedent regarding lifetime registration requirements. N.R. appealed, arguing KORA’s lifetime registration requirement as a sex offender is unconstitutional as applied to juveniles. He also argued his sentence was illegal because the magistrate judge lacked authority to order him to register.

ISSUES: (1) Constitutionality of registration requirement—juveniles, (2) KORA registration ordered by magistrate

HELD: District court did not err in finding the registration requirement constitutional as applied to juveniles. Kansas courts have repeatedly held that KORA offender registration is not punishment, and that a registration requirement is not part of a defendant’s criminal sentence. State v. Dull, 302 Kan. 32 (2015), is distinguished by the mandatory postrelase supervision ordered in that case being part of the juvenile’s sentence. N.R. showed no reason why registration should be considered punishment for juveniles. Test in State v. Petersen-Beard, 304 Kan. 192 (2016), is summarized and applied finding no showing the outcome would have been different had it involved a juvenile instead of an adult.

            KORA itself, rather than a court order, imposes the duty to register upon sex offenders. Any lack of magistrate judge’s authority is immaterial because the duty to register arises by statute, falls on N.R., and is not part of N.R.’s sentence.

STATUTES: K.S.A. 2018 Supp. 20-302b(a)(6), 22-4902(b), -4906(h), 38-2356(b); K.S.A. 2006 Supp. 22-4906(h)(1); K.S.A. 2005 Supp. 21-3502(a)(2), -3502(c); K.S.A. 22-4901 et seq.,

 

appeals—constitutional law—criminal law—first amendment—statutes—torts
state v. smith
douglas district court—reversed and sentence vacated
no. 119,919—september 27, 2019

FACTS: Perez lived across the street from Smith who accused Perez of sexual misconduct with Smith’s child. District court denied Smith a final protection from stalking (PFS) order against Perez, but granted Perez a final PFS order against Smith that included a special prohibition against Smith making any direct or indirect disparaging statements in public regarding Perez being a child molester. While entering her residence, Smith told her husband who was standing in their driveway to come inside away from the pedophile. Perez and family heard and recorded that statement. Smith charged with violating the PFS order. She moved to dismiss, arguing the PFS order was an unconstitutional, content-based restriction on her free-speech rights, and that criminal prosecution under K.S.A. 2017 Supp.21-5924 for violating the order was unconstitutional as applied to her. She appealed on the same constitutional claims, and also argued insufficient evidence showed that her statement was made in public. State asserts the constitutional claim is an impermissible collateral attack on the earlier PFS order, and State questions whether the PFS order is a content-based restriction.

ISSUES: (1) Sufficiency of the evidence, (2) procedural bar to constitutional question, (3) First Amendment, (4) content-based restriction

HELD: Sufficient evidence shows that Smith made the statement in public. Her Fourth Amendment argument concerning privacy of curtilage of her home is not applicable. Even with a curtilage analysis, her words carried beyond that curtilage and invaded curtilage of Perez’ house.

            Smith’s appeal is not procedurally barred. She is appealing a criminal judgment with a statutory right to appeal, and her free speech issue is now ripe. Even if she could have raised her First Amendment objections when the district court issued the PFS order, there is no bar to her raising them now.

            Smith’s speech warrants First Amendment protection. State’s invocation of the defamation category of speech that may be restricted fails. Cases involving libel are distinguished from isolated slander in this case. Even if slanderous statement could be assumed as defamatory speech, no evidence that Smith’s statement was in fact defamatory. No showing that Smith’s statement was knowingly false, and that Smith’s statement caused any harm to Perez’ reputation.

            The PFS order in this case is a content-based prior restraint on speech, thus presumptively unconstitutional. State fails to show the PFS order serves a compelling state interest. Purpose of Kansas stalking statute is to protect innocent citizens from threatening conduct that subjects them to a reasonable fear of physical harm. The statutes expressly excludes constitutionally protected activity from its definition and does not reflect any State interest in preventing slander. Under circumstances in this case, the PFS order, as applied solely to speech which did not subject a person to a reasonable fear of physical harm, was an improper prior restraint of Smith’s  constitutional right to freedom of speech. Conviction is reversed and sentence vacated.

STATUTES: K.S.A. 2018 Supp. 21-5427, 22-3602(a), 60-31a02, -31a02(d). -31a02(d)(1), -31a02(d)(2), -31a05(a); K.S.A. 2017 Supp. 21-5924

Tags:  1st Amendment  attorney discipline  Douglas District Court  Franklin District Court  Graham District Court  Johnson District Court  KORA Lifetime Registration for Juvenile Offender  medical malpractice  military retirement in divorce  Reno District Court  Shawnee District Court 

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September 13, 2019 Digests

Posted By Administration, Monday, September 16, 2019

Kansas Supreme Court

 

Attorney Discipline

ORDER OF REINSTATEMENT
IN RE HARRY LOUIS NAJIM
NO. 116,943—SEPTEMBER 11, 2019

FACTS: Najim's license to practice law in Kansas was indefinitely suspended in December 2017. Najim petitioned for reinstatement in November 2018. After an investigation, Najim appeared at a hearing and the panel recommended that Najim's license be reinstated.

HELD: After a thorough review of the hearing panel's report, the court accepts the findings and finds that Najim's license should be reinstated.

 

ORDER OF REINSTATEMENT
IN RE DAVID E. HERRON,II
NO. 119,726—SEPTEMBER 11, 2019

FACTS: In May 2019, Herron's license to practice law in Kansas was suspended for 60 days. After that time elapsed, Herron filed a petition for reinstatement. The office of the Disciplinary Administrator had no objection to reinstatement

HELD: Seeing no objection, the court considered and granted Herron's petition for reinstatement.

 

Kansas Court of Appeals

 

criminal

criminal law—evidence—motions—statutes
state v. justice-puett
riley county district court—reversed and sentence vacated
no. 119,697—september 13, 2019

FACTS: Jurtice-Puett appealed her jury conviction for possession of a theft detection device remover. Citing the lack of evidence identifying what she had used to cut a security detection device from two phones, she argued in part that K.S.A. 2018 Supp. 21-5805(c) only prohibits possession of either a tool or device specifically designed to remove or defeat theft detection devices on merchandise.   

ISSUE: K.S.A. 2018 Supp. 21-5805(c)

HELD: K.S.A. 2018 Supp. 21-5805(c) is interpreted as issue of first impression. The statute is plain and unambiguous. State’s argument that statute prohibits possessing any kind of tool or device capable of removing a theft detection device is rejected. Instead, when words of K.S.A. 2018 Supp. 21-5805(c) are given their ordinary meaning, and read in context with other subsections, it is clear that "tool" and "device" are both modified by the descriptive phrase "designed to allow the removal of any theft detection device." Thus the phrase "designed to allow the removal of any theft detection device" requires an intentional design particular to, and designed for the purpose of, the removal of any theft detection device. Viewing evidence in light most favorable to the State, no rational fact-finder could have found Justice-Puett guilty of possessing a tool or device designed to allow the removal of any theft detection device. Without evidence of what tool she may have used, the burden of proof regarding the intentional design element is not met. Defendant's motion for judgment of acquittal should have been granted.

STATUTE: K.S.A. 2018 Supp. 21-5805(c)

Tags:  Attorney Discipline  Riley Co. District Court 

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August 30, 2019 Digest

Posted By Administration, Tuesday, September 3, 2019

Kansas Supreme Court

 

ATTORNEY DISCIPLINE

ORDER OF DISBARMENT
IN RE LARRY DEAN TOOMEY
NO. 11,959—AUGUST 29, 2019

FACTS: In a letter dated August 13, 2019, Larry Dean Toomey voluntarily surrendered his license to practice law in Kansas. At the time of surrender, a disciplinary complaint was pending. Toomey was convicted of two counts of felony theft; the victim was his client.

HELD: The Court accepted the surrender, and Toomey is disbarred.

Tags:  Attorney Discipline  Disbarment 

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June 28, 2019 Digests

Posted By Administration, Monday, July 1, 2019

Kansas Supreme Court

ATTORNEY DISCIPLINE

ORDER OF SUSPENSION
IN RE GREGORY V. BLUME
NO. 119,027
JUNE 28, 2019

FACTS: A hearing panel determined that Blume violated KRPC 3.1 (meritorious claims and contentions); 3.3(a)(1) (candor toward tribunal); 3.4(d) (compliance with discovery request); 4.4(a) (respect for rights of third persons); 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation); and 8.4(d) (conduct prejudicial to the administration of justice). One incident involved an allegedly inadequate response to a discovery request, two involved rude words and gestures directed at a deposition witness, and one arose out of a motion to set aside an earlier agreed judgment. Blume's actions regarding discovery resulted in the dismissal of his client's case, after the district court found that Blume's conduct was calculated and intentional.

HEARING PANEL: The hearing panel found adequate evidence to support all of the complaints levied against Blume. When considering aggravating factors, the panel noted that Blume's conduct was motivated by dishonesty and was part of a pattern of failing to show respect for other people. The disciplinary administrator recommended a one-year suspension. Blume asked for a one-year suspension but asked that it be suspended while he served a probationary term. However, the panel found that Blume's probation plan was wholly inadequate and that his misconduct could not be corrected by probation. The hearing panel agreed with the disciplinary administrator and recommended discipline of a one-year suspension.

HELD: Blume filed numerous exceptions to the hearing panel's report. Most of the exceptions were not supported by evidence that was considered by the hearing panel. At the hearing before the court, Blume explained that he planned to retire within six months. He asked that discipline be limited to a requirement that he apologize to the deposition witness. The court found Blume's objections to the findings of fact incoherent and inconsistent, and all of the hearing panel's findings of fact and conclusions of law were adopted. The court found that Blume failed to understand the nature of his mistakes and did not acknowledge the seriousness of his misconduct. Because of the serious nature of his misconduct and his failure to take responsibility, the court determined that a severe sanction was warranted. It imposed an indefinite suspension from the practice of law.

CIVIL

CITY ORDINANCEHOME RULE
DWAGFYS MANUFACTURING, INC. V. CITY OF TOPEKA
SHAWNEE DISTRICT COURT
REVERSED
NO. 119,269
JUNE 28, 2019

FACTS: The City of Topeka passed Ordinance 20099, which made it unlawful to sell cigarettes to persons under age 21, and persons under age 21 were forbidden to buy tobacco. Prior to the ordinance taking effect, a store sued the City of Topeka seeking to prevent enforcement of the ordinance as unconstitutional under the Kansas Constitution. The district court agreed, finding conflicts between the ordinance and state law. The district court both temporarily and permanently enjoined enforcement of the ordinance. The City appealed, and the case was transferred to the Supreme Court.

ISSUE: (1) Statutory preemption

HELD: There is overlap between the ordinance and state statute regarding the subject matter, and the state statute is a uniform law applicable to all cities. But the Kansas Cigarette and Tobacco Products Act does not contain an express statement of preemption, and the act's "comprehensive scheme" of regulation is inadequate to show an intent to preempt city action. There is also no conflict between the language of the act and the ordinance. The act does not expressly authorize the sale or purchase of tobacco products to those ages 18-20. The ordinance is a constitutional exercise of the city's home rule power, and the district court is reversed.

STATUTE: Kansas Constitution, Article 12, §5(b), §5(d)

criminal 

attorney and client—criminal procedure—motions
state v. bacon
sedgwick district court—affirmed; court of appeals—affirmed
no. 114,951—june 28, 2019

FACTS: Bacon was charged with aggravated human trafficking. After appointed public defender continued the preliminary hearing seven times, Bacon filed pro se “Motion for Diligence” with copy of KRPC 1.3. No action taken on this and subsequent similar motions. Appointed counsel continued the preliminary hearing three more times, and continued trial three times. Bacon then retained private counsel. State amended the complaint and jury found Bacon guilty of commercial sexual exploitation of a child. Motion for new trial filed, based in part on district court’s failure to inquire into Bacon’s pro se motions voicing dissatisfaction with appointed counsel. Bacon appealed the district court’s denial of that motion. Court of appeals affirmed the conviction, finding in part the pro se motions did not allege dissatisfaction with appointed counsel. Review granted on this issue.

ISSUE: District court’s duty to Inquire 

HELD: It is assumed without deciding that Bacon’s pro se motions were sufficient to trigger the district court’s duty to inquire into a potential conflict with his trial attorney, but on facts in case, remand to district court is unnecessary because Bacon retained a new attorney for trial; he does not claim his trial attorney was ineffective; and he does not otherwise identify any prejudice flowing from district court’s failure to inquire.

STATUTE: K.S.A. 2014 Supp. 21-5426(b)(4), -6422(a)(4)

criminal procedure—motions—sentences—statuites
state v. dubry
shawnee district court—affirmed
court of appeals—affirmed
no. 114,050—june 28, 2019

FACTS: Dubry was convicted of kidnapping. Years later he moved to correct his 2011 sentence, arguing the sentencing court improperly scored a prior Wyoming conviction as a person crime. District court denied the motion. Dubry appealed, arguing the Wyoming statute is broader than the counterpart Kansas offense. Court of appeals affirmed in unpublished opinion. Dubry’s petition for review granted, and parties were ordered to explain whether panel’s decision should be summarily vacated and case remanded to district court in light of State v. Wetrich, 307 Kan. 552 (2018). Dubry argues Wetrich should apply.

ISSUE: Classification of out-of-state crime

HELD: Affirmed based on State v. Murdock, 309 Kan. 585 (2019)(Murdock II). Legality of a sentence under K.S.A. 2018 Supp. 22-3504 is controlled by the law in effect at the time the sentence was pronounced. Thus a sentence that was legal when pronounced does not become illegal if the law subsequently changes. Since Wetrich announced a change in the law and Dubry was sentenced before Wetrich was decided, application of Wetrich to Dubry’s motion to correct his sentence is barred by Murdock II.

STATUTES: K.S.A. 2018 Supp. 22-3504; K.S.A. 20-3018(b), 21-3503, -4701 et seq., -4711, 60-2101

CONSTITUTIONAL LAW—EVIDENCE—FIFTH AMENDMENT
FOURTH AMENDMENT—MOTIONS
STATE V. GUEIN
JOHNSON DISTRICT COURT—REVERSED AND REMANDED
COURT OF APPEALS—AFFIRMED IN PART AND REVERSED IN PART
NO. 115,426—JUNE 28, 2019

FACTS: Police observed a suspected drug deal involving car parked in a closed Burger King lot. Officers approached the car, patted down occupants and retrieved a bag of marijuana Guein admitted was in his underwear. After arrest, Guein admitted to additional marijuana in the car. Search of the car disclosed handgun, loose marijuana, and drug paraphernalia. Guein filed a motion to suppress his statements and the evidence obtained as a result of search of his person and his car. District court: refused to suppress Guein’s statement of having marijuana in his underwear because Guein was not in custody until handcuffed; suppressed Guein’s statement of additional drugs in car, made after handcuffed and before Miranda warning; admitted post-Miranda statements, finding Guein had voluntarily waived his rights; and denied suppression of the physical evidence. Guein was convicted of felony distribution of marijuana and misdemeanor possession of paraphernalia. A divided court of appeals reversed in part and affirmed in part the district court’s decision on the motion to suppress and remanded to district court. State v. Guein, 53 Kan. App.2d 394 (2017). Entire panel upheld the admission of Guein’s statement about marijuana in underwear and the marijuana found there, finding Miranda  warnings were not necessary. Majority concluded officer’s statements to Guein were sufficiently threatening to negate the Miranda warning, and State’s failure to provide the trial transcript prevented a harmless error analysis. Conviction was set aside and a new trial ordered. Guein and State both petitioned for review.

ISSUES: (1) Admission of pre-Miranda statement; (2) admission of post-Miranda statement

HELD: Factors cited in State v. Lewis, 299 Kan. 828 (2014), are examined on facts in case, finding officer’s pre-Miranda interrogation was custodial rather than investigative. District court’s denial of motion to suppress pre-Miranda statement about marijuana in underwear is reversed.

     Under facts in case, officer’s aggressive and profane language implied physical violence toward Guein, prompting Guein’s later incriminating statement. Panel’s majority on this issue is affirmed. Remanded to district court for further proceedings.

CONCURRENCE AND DISSENT (Stegall, J.)(joined by Biles, J.): Disagrees with majority’s order to suppress Guein’s pre-Miranda statements, and would support panel’s assessment that this was an ordinary investigatory detention not requiring Miranda warnings. Agrees that Guein’s post-Miranda statements were not voluntary and must be suppressed, but does not find officer’s use of profanity as significant as the majority does. Guein was coerced because of a real and actionable threat. Law enforcement’s use of the word “fuck” does not make the circumstances more or less coercive, and majority’s reasoning suggests a politely worded threat is less coercive than a vulgar one.  

STATUTUES: K.S.A. 2018 Supp. 60-460(f); K.S.A. 20-3018(b), 22-2402(1), -3215(4), -3216(2), 60-2101(b)

constitutional law—criminal law—criminal procedure—evidence
jury instructions—prosecutors—statutes`
state v. james
sedgwick district court—affirmed
no. 117,945—june 28, 2019

FACTS: James was convicted of first-degree premeditated murder and criminal possession of a firearm. On appeal, he claimed district court erred by: refusing defense requests for instructions on lesser included offenses of reckless second-degree murder and reckless involuntary manslaughter; refusing to instruct jury on imperfect self-defense involuntary manslaughter; failing to instruct jury to consider verdicts of premeditated murder and imperfect self-defense voluntary manslaughter simultaneously;  and admitting gruesome autopsy photos. He also claimed prosecutorial error during closing argument, claimed he was deprived his constitutional right to be present at all critical stages of the trial—namely requests for continuances, and argued cumulative error required reversal.

ISSUES: (1) Jury instructions on reckless based homicides; (2) jury instruction on imperfect self-defense of involuntary manslaughter; (3) jury instruction on simultaneous consideration of lesser included crimes; (4) admission of autopsy photos; (5) prosecutorial error; (6) constitutional right to presence; (7) cumulative error

HELD: Challenge to district court’s refusal to instruct on lesser included reckless homicides was properly preserved, and the requested instructions were both legally and factually appropriate under facts in case. District judge’s refusal to instruct jury on reckless second-degree murder and reckless involuntary manslaughter was error, but not reversible error under the statutory harmless error standard.

     Likewise, James preserved his challenge to district court’s refusal to instruct on imperfect self-defense of involuntary manslaughter. This instruction was legally appropriate, and under facts in case, also factually appropriate. Applying statutory harmlessness test, district judge’s failure to give the requested instruction was not reversible error.

     Under controlling precedent in State v. Sims, 308 Kan. 1488 (2018), pet. for cert. filed April 29, 2019, a district court is not required to instruct a jury to consider a lesser included homicide offense simultaneously with any greater homicide offense.

      No abuse of district judge’s discretion by admitting autopsy photos which were not repetitious and which allowed pathologist to explain path of bullet that killed the victim and show skull fractures that resulted.

     Prosecutor erred by stating James left the scene in a stolen car because no evidence supported a description of the car as “stolen.” Also, referencing an uncharged crime is problematic because it encourages jurors to draw inference of a defendant’s propensity to commit crimes. In light of entire record, however, this error does not require reversal.

     Because record contains no evidence that James knowingly and voluntarily waived his right to be present when first attorney requested two continuances, error is assumed. Under constitutional standard the error was harmless under facts in this case. State v. Wright, 305 Kan. 1176 (2017), is distinguished.   

     The combination of instructional errors, prosecutorial error, and assumed violation of James’ right to be present at all critical stages did not deprive James of a fair trial.

STATUTES: K.S.A. 2018 Supp. 21-5202(j), -5202(h), -5226, -5402(a)(1), -5403(a)(1), -5403(a)(2), -5801, -5803, 60-455(a); K.S.A. 2015 Supp. 21-5405(a)(4); K.S.A. 22-3402

constitutional law—criminal procedure
evidence—sentencing—statutes
state v. obregon
geary district court—reversed, sentences vacated and remanded
court of appeals—affirmed in part and reversed in part
NO. 117,422—june 28, 2019

FACTS: Obregon entered no contest pleas to possession of drugs with intent to distribute.  District court accepted the pleas, and in sentencing, applied the statutory firearm enhancement. Obregon appealed, challenging whether district court should have classified a prior Florida battery conviction as a person felony without knowing which version of the Florida crime he committed. He also claimed his no contest pleas to the base drug offenses did not include any facts upon which the enhancement could be grounded. Court of appeals concluded the district court properly calculated Obregon’s criminal history score, but held Obregon’s waiver of his right to jury trial on the firearm enhancement was invalid. Panel vacated the enhancement and remanded case to district court for proper waiver or for jury to make factual findings required by K.S.A. 2015 Supp. 21-6805(g)(1) regarding the firearm. Obregon’s petition for review granted.

ISSUES: (1) Florida battery conviction; (2) firearm enhancement

HELD: Pursuant to State v. Murdock, 309 Kan. 585 (2019)(Murdock II), Obregon is entitled to application of State v. Wetrich, 307 Kan. 552 (2018), but variation to the Wetrich analysis is presented because the Kansas and out-of-state offenses are both what Kansas law refers to as “alternative means crimes.” When the crime in question is an out-of-state offense with alternative means—some of which would not be comparable to Kansas person crimes—the State bears the burden of establishing the defendant committed a version of the offense supporting the person classification. On record in this case, district court’s finding that Obregon committed a Florida offense with a comparable Kansas person crime is not supported by substantial competent evidence. Because the Florida offense on its face is broader than the Kansas comparator, it should not have been classified as a person offense under Wetrich. Sentence is vacated and case is remanded for district court to reconsider the Florida conviction’s person-crime classification.

     Panel erred by remanding his case for a jury to determine if firearm enhancement should apply. As a general rule, special questions may not be submitted to a jury for answer in a criminal prosecution, and the legislature has not created a statutory exception to the general rule against special verdicts for a firearm enhancement to be determined separately after the verdict. Obregon’s resentencing is to proceed without the firearm enhancement.

CONCURRENCE AND DISSENT (Johnson, J.): Agrees the district court must resentence Obregon without the enhancement. Also agrees the State failed to present sufficient evidence to support classification of the Florida battery conviction as a person felony, but that insufficiency of the evidence should result in vacating the sentence and remanding for resentencing of criminal history score with the Florida conviction classified as nonperson.        

STATUTES: K.S.A. 2018 Supp. 21-5413(a), -5413(a)(1), -5413(a)(2), -5413(g), -6801 et seq., -6805(g)(1), -6805(g)(2), -6809, -6814, -6814(b), -6814(c); K.S.A. 2015 Supp. 21-6805(g)(1), -6811(e); K.S.A. 2013 Supp. 21-6817(b)(2); K.S.A. 20-3018(b), 21-3715, -3715(a), 60-2101(b)

criminal procedure—mootness—motions—sentencing—statutes
state v. russ
sedgwick district court—affirmed;
court of appeals—affirmed
no. 115,111—june 28, 2019

FACTS: Russ was found guilty of attempted second-degree murder. His prior convictions included six Wichita municipal violations classified as person misdemeanors, five of which were eligible for conversion to a felony. Russ appealed sentencing court’s classification of prior municipal ordinance convictions as person offenses to calculate Russ’ criminal history score, arguing in part the domestic battery municipal ordinances were broader than the counterpart Kansas domestic battery statute. Court of appeals affirmed in unpublished opinion. Russ petitioned for review claiming the panel erred by: (1) looking beyond the most comparable Kansas offense of domestic battery to analyze his municipal ordinance domestic battery convictions, and (2) declining to address as moot an issue concerning his prior conviction of failure to comply with bond restrictions.

ISSUES: (1) Classifying the domestic battery municipal ordinance violations; (2) mootness

HELD: Applying State v. Wetrich, 307 Kan. 552 (2018), the panel correctly held Russ’ domestic battery ordinance violations were person offenses. Only difference between the ordinances and the Kansas domestic battery statue is the specific requirement of the relationship between the batterer and the battered, which makes the scope of the ordinance’s proscribed acts narrower, not broader.  

     Panel correctly declined to address the classification of Russ’ prior conviction for failure to comply with bond restrictions. Regardless of classification of this prior conviction, Russ’ criminal history score is unchanged since three prior domestic battery municipal ordinance violations were properly scored as person misdemeanors.

STATUTES: K.S.A. 2018 Supp. 21-5413(a), -5413(g)(1), -6801 et seq., -6810(a), -5811(a); K.S.A. 2017 Supp. 21-6811(e)(3); K.S.A. 2016 Supp. 21-6804(a), -6809, -6811(a); K.S.A. 2014 Supp. 21-5414(a); K.S.A. 20-3018(a), 60-2101(b)

 

Kansas Court of Appeals

CIVIL

DISCOVERY
FLAHERTY V. CNH INDUSTRIAL AMERICA
SALINE DISTRICT COURT – AFFIRMED
NO. 119,704 – JUNE 28, 2019

FACTS: Flaherty purchased a sprayer manufactured by CNH in early 2014. Later that year, Flaherty took it back to the dealer for maintenance and a hose adjustment. The dealer knew that there were also potential issues with one of the drive hoses at the engine starter. While the sprayer was at the dealer, it caught on fire and was completely destroyed. During the investigation, a fire investigator with the fire department accompanied law enforcement on the scene. It was his opinion that the fire was caused by an electrical issue. Neither of Flaherty's experts could definitively determine the fire's cause. Robert Hawken, a product safety specialist at CNH, investigated the sprayer in anticipation of litigation. Flaherty sued both CNH and the dealer. During discovery, Flaherty provided notice of his intent to depose Hawken. CNH filed a motion to quash and asked the court to quash the subpoena. The district court granted that motion and Hawken was not deposed. After hearing more evidence, the district court granted CNH's motion for summary judgment on all claims and Flaherty appealed.

ISSUES: (1) Denial of discovery request; (2) express warranty claims; (3) implied warranty claims

HELD: Hawken examined the sprayer over a month after the fire, and he only gave his findings to CNH's legal department and outside counsel. The dealer told Flaherty that Hawken believed the fire started in the sprayer's starter area. Hawken's opinions were protected by work-product privilege as far as the subpoena duces tecum was concerned. Hawken was also protected by non-testifying expert privilege as an in-house expert. Flaherty failed to prove that Hawken waived his privilege, and much of the privilege belonged to CNH, and Hawken has no power to waive it on the company's behalf. The warranty agreement between Flaherty and CNH disclaimed any express warranty created by descriptions of the sprayer on its website or by statements made by salespeople. And Flaherty failed to identify any specific descriptions of the sprayer on which he relied. In addition, the warranty agreement required Flaherty to prove that the sprayer had a defect in material or workmanship, which he failed to do. Any implied warranty claim had a similar requirement that Flaherty prove the existence of a defect. In addition, Flaherty failed to prove that the sprayer was defective when it left CNH's control.

STATUTES: K.S.A. 2018 Supp. 60-226(b)(4)(A), -226(b)(5), -226(b)(5)(D), -233(b)(1)(B), -256(c)(2), -456; K.S.A. 60-437, 84-2-313(1)(b), -313(2), -314(1), -314(2)(c)

 

Tags:  8807  Attorney Discipline  Geary District  Johnson District  Saline District  Sedgwick District  Shawnee District  Weekly20190702 

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June 7, 2019 Digests

Posted By Administration, Monday, June 10, 2019
Updated: Friday, June 7, 2019

Kansas Supreme Court

Attorney Discipline

INDEFINITE SUSPENSION
IN RE THOMAS CALEB BOONE
NO. 120,744—JUNE 7, 2019

FACTS: A hearing panel determined that Boone violated KRPC 1.1 (competence); 1.3 (diligence); 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); and 8.4(d) (engaging in conduct prejudicial to the administration of justice). Boone also stipulated to a violation of 3.4(d) (failure to comply with a discovery request). The allegations arose after Boone twice failed to prosecute a civil action, missing multiple deadlines and failing to comply with district court orders. Boone appealed the dismissal of one action but the court of appeals affirmed the district court, finding that Boone's appellate brief failed to comply with court rules.

HEARING PANEL: The hearing panel found evidence to support the allegations made in the complaint. When considering discipline, the panel noted Boone's prior history of discipline, the pattern of misconduct, and the number of rule violations. In mitigation, the panel acknowledged the illness and death of Boone's father and Boone's genuine remorse for his actions. The disciplinary administrator recommended that Boone's license be indefinitely suspended. Boone asked that he be placed on probation, but because some of his conduct involved dishonesty, the panel determined that probation was not appropriate. The hearing panel agreed with the disciplinary administrator that indefinite suspension was the appropriate discipline.

HELD: There were no exceptions filed to the hearing panel's report, so it was deemed admitted. The court denied Boone's request for probation, finding that the misconduct was not amenable to probation. The court adopted the recommendation of the hearing panel and ordered that Boone's license be indefinitely suspended.

ORDER OF DISBARMENT
IN RE MATTHEW EDGAR HULT
NO. 24,854—JUNE 6, 2019

FACTS: Hult's law license was indefinitely suspended in February 2018. Since that time, four additional complaints have been filed alleging additional violations of the KRPC. In a letter, Hult voluntarily surrendered his license to practice law in Kansas.

HELD: The court accepts the surrender of Hult's license, and he is disbarred.

Civil

CONSERVATORSHIP—FACTFINDING—GUARDIANSHIP
IN RE GUARDIANSHIP AND CONSERVATORSHIP OF B.H.
WILSON DISTRICT COURT—COURT OF APPEALS IS REVERSED
CASE REMANDED
NO. 118,188—JUNE 7, 2019

FACTS: Biological mother and father relinquished custody of their children to relatives through a legal guardianship. Once that placement was made, the state terminated child- in-need-of-care proceedings that were pending against the parents. Both parents spent time in prison, neither paid the child support that was ordered, and father left the state after he completed his prison term. After some time passed, mother and father sought to terminate the guardianship, citing a constitutional right to parent. After hearing evidence, the district court denied the motion, citing clear and convincing evidence that the guardianship was in the children's best interests. The parents appealed and the court of appeals reversed, finding that the district court erred by considering the best interests of the children. That court believed that the district court should have applied the parental preference doctrine because there had never been a finding of parental unfitness. The guardians' petition for review was granted.

ISSUE: (1) Termination of guardianship

HELD: The purposes of the Code for Care of Children were circumvented by the shift from a CINC proceeding to a guardianship action. Normally, voluntary guardianships are voluntary and may be terminated at any time for any reason. Under ordinary circumstances, parental preference rights would require termination of the guardianship. In this case, though, the voluntary guardianship stopped a final CINC determination and put the CINC action in limbo. There have never been parental fitness findings made in this case, and it is unclear whether the district court attempted to make those findings when refusing to terminate the guardianship. Because the record is unclear, this case is remanded to the district court for additional findings of fact and conclusions of law. If extraordinary circumstances exist to justify the continuation of the guardianship, those findings must be clearly made.

STATUTES: K.S.A. 2018 Supp. 38-2201(a), -2203(a), -2203(c), -2255, -2255(e), -2255(f), -2264, -2272, -2272(a)(1), -2272(b), -2272(h); K.S.A. 59-3091, -3091(h)

ADVERSE POSSESSION—MINERAL RIGHTS
OXY USA V. RED WING OIL
HASKELL DISTRICT COURT—COURT OF APPEALS IS AFFIRMED
DISTRICT COURT IS REVERSED—CASE REMANDED
NO. 111,973—JUNE 7, 2019

FACTS: Oxy USA, Inc. developed a productive oil and gas well on a unitized production unit of land. The unitized area included a quarter section of land which is the subject of this dispute. The well is not located on the property in question, but the owner of the minerals under that property can receive royalties from the production under the unitization agreement. However, Oxy was unable to determine which party owned a disputed one-half interest in the minerals under the property. To resolve that question, Oxy filed this interpleader and quiet title action to determine the rightful owner of the minerals under the property. Alice La Velle King owns the surface rights and an undisputed half interest in the minerals rights, and she claims the other half interest also belongs to her. Opposing her are 41 different people or groups all claiming ownership. The district court granted summary judgment to the other property owners, finding that King's claim to the royalties was barred by the statute of limitations. The court of appeals reversed on adverse possession grounds. The petition for review was granted.

ISSUE: (1) Can the surface owner of land enforce a reversionary interest in minerals at a later date, or is she barred by the statute of limitations or adverse possession

HELD: The misappropriation of royalties, standing alone, does not establish adverse possession of a mineral interest. It doesn't matter whether King knew about royalty payments being made to the other landowners. The surface owner is the legal owner of the minerals located underground. Title to the mineral rights quiets in her favor.

STATUTE: K.S.A. 60-503, -507 

criminal 

constitutional law—fourth amendment—MOTIONS—search and seizure
state v. andrade-reyes
johnson district court—reversed and remanded;
court of appeals—reversed
no. 115,044—june 7, 2019

FACTS: Two officers approached both sides of a car lawfully parked in dark area of an apartment complex lot, shined flashlights on the 2 individuals in the front seat, and repeatedly asked passenger (Andrade-Reyes) to open his hands. Once he did, the baggie dropped and retrieved tested positive for cocaine. Andrade-Reyes charged with possession of cocaine and drug paraphernalia. He filed motion to suppress evidence obtained through an unlawful seizure. District court denied the motion, finding the encounter was voluntary, or in the alternative, the detention was justified for officer safety.

ISSUE: (1) Unlawful seizure

HELD: Andrade-Reyes was unlawfully seized. The encounter was not voluntary. Under totality of the circumstances a reasonable person would not have felt free to terminate the encounter. And prior to Andrade-Reyes dropping the white substance, the officers lacked reasonable suspicion to detain him. Officer safety concerns alone do not justify an investigatory detention. State v. Reiss, 299 Kan. 291 (2014), is distinguished. All evidence obtained as a result of the unlawful seizure must be suppressed. Reversed and remanded.

DISSENT (Luckert, J.): Agrees with majority’s synthesis of the applicable law, but disagrees with its application of the law to facts in this case. Would hold that once officers initiated the encounter, a reasonably prudent officer would have been warranted in believing, because of specific and articulable facts, that Andrade-Reyes was armed and posed an immediate danger. Because of this belief, it was reasonable for officers to demand that he open his hand. This limited intrusion was reasonable and appropriate for officer safety purposes.

STATUTE: K.S.A. 20-3018(b), 22-2402

constitutional law—criminal law—criminal procedure—
Fourth Amendment—jury instructions—motions—Sixth Amendment—Statutes
state v. Barrett
riley district court—affirmed in part, reversed in part, and remanded
court of appeals—affirmed in part and reversed in part
no. 113,767—june 7, 2019

FACTS: Barrett convicted of reckless second degree murder and sentenced for the killing of an exterminator who had entered Barrett’s apartment to kill bugs. Trial delayed over six years until Barrett was competent to stand trial. Key question for jury was whether Barrett’s mental condition prevented him from forming a culpable mental state. On appeal, he claimed reversible error in district court’s failure to deny a requested instruction on imperfect self-defense voluntary manslaughter. In unpublished opinion, Court of Appeals affirmed, finding instructional error but the error was harmless under the “skip rule.”  Panel also rejected Barrett’s claim that his mental illness made his post-Miranda statements involuntary under Blackburn v. Alabama, 361 U.S. 199 (1960), and claim that State’s failure to force him to take his antipsychotic medication for four years violated the Kansas speedy trial statute. Review granted on all claims.

ISSUES: (1) Jury instructions - skip rule; (2) motion to suppress; (3) speedy trial

HELD: District court committed reversible error when it failed to give an imperfect self-defense voluntary manslaughter instruction. “Skip rule” is revisited, clarified, and corrected. The “skip rule” is a logical deduction that may support a finding of harmless error when it reasonably applies, but it does not replace longstanding harmlessness tests. Instead, the logical deduction inherent in the skip rule is one factor, among many, to be considered as part of the applicable harmlessness test. In this case, failure to give the imperfect self-defense voluntary manslaughter instruction was reversible error because jury could have reasonably convicted Barrett of voluntary manslaughter. Reversed and remanded for a new trial.

Blackburn is distinguished. Colorado v. Connelly, 379 U.S. 157 (1986), is controlling, holding that coercive police activity is a necessary predicate to finding a confession is not voluntary within the meaning of the Due Process Clause of the Fourteenth Amendment. District court found no evidence of coercive police activity in this case, and correctly dismissed Barrett’s motion to dismiss.

Denial of Barrett’s motion to dismiss on speedy trial grounds is affirmed. Sixth Amendment did not require State to force-medicate Barrett with potentially life-threatening medication to maintain his competency to stand trial.

STATUTE: K.S.A. 21-3403(b), 22-3220, 60-261

criminal law—sentences—statutes
state v. newton
saline district court—affirmed
court of appeals—affirmed
no. 116,098—june 7, 2019

FACTS: Newton was convicted of attempted rape. Years later, he filed motion to correct an illegal sentence, arguing the district court incorrectly calculated his criminal history score by classifying pre-1993 convictions as person felonies contrary to State v. Murdock, 299 Kan. 312 (2014)(Murdock I), overruled by State v. Keel, 302 Kan. 560 (2015). District court denied the motion, concluding Murdock I did not apply retroactively. Newton appealed. While appeal was pending, Keel overruled Murdock I. Court of appeals affirmed in an unpublished opinion, applying State v. Vandervort, 276 Kan. 164 (2003), to find district court properly scored Newton’s California conviction as a person felony. Review granted of Newton’s criminal history challenge, and parties were directed to address State v. Wetrich, 307 Kan. 552 (2018).

ISSUE: (1) Criminal history calculation

HELD: Resolution of this appeal does not resolve parties’ arguments regarding Wetrich. Instead, following State v. Murdock, 309 Kan. 585 (2019)(Murdock II), Newton’s 1977 California robbery conviction was properly classified as a person felony under Kansas caselaw in 2008 when his sentence in the Kansas case became final.

STATUTES: K.S.A. 2018 Supp. 22-3504, -3504(3); K.S.A. 2017 Supp. 21-6811(e)(3); K.S.A. 20-3018(b), 21-4710 et seq., -4711(e), 60-2101(b)

constitutional law—fifth amendment—motions—venue
state v. palacio
saline district court—affirmed
NO. 116,899—june 7, 2019

FACTS: Palacio fired shots into a truck, killing the passenger. Palacio filed motion for change of venue, arguing significant pretrial publicity made it impossible to receive an impartial jury. District court denied the motion. Palacio also filed motion to suppress his confession because officers continued to interrogate him after he asked for a lawyer, or alternatively, the officers used coercive tactics. District court suppressed statements Palacio made in-between time he asked for a lawyer and the time he told officers he wanted to say something. Jury convicted Palacio of first-degree murder under theories of premeditation and felony murder, attempted first-degree murder, criminal discharge of a firearm at an occupied vehicle, and conspiracy to commit aggravated battery. On appeal he claimed the district court’s refusal to change venue violated K.S.A. 22-2616. He also claimed the officers violated his Fifth Amendment rights, or alternatively, his confession was involuntary.

ISSUES: (1) Change of venue statute; (2) motion to suppress confession

HELD: District court’s weighing of factors in K.S.A. 22-2616 is reviewed and upheld, including the slight favor of prejudice attributed to the severity of Palacio’s crimes that included a homicide. Same factor compared to weight of prejudice in cases involving more severe crimes of capital murder and rape.

Kansas Supreme Court has never directly addressed whether explicit questioning is always interrogation, but cases have indicated it is not. Court now confirms that an officer’s words or actions, including explicit questions, is interrogation only if the officer should have known that the questioning was reasonably likely to elicit an incriminating response from the suspect. In this case, the officers’ comments and questions were not interrogation and did not violate Fifth Amendment. Palacio thus was free to waive his previously invoked right, and knowingly and intelligently did so. Under facts in this case, district court did not err in finding the officers did not threaten, coerce, or engage in deceptive practices, and in concluding Palacio’s confession was voluntary.

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

STATUTE: K.S.A. 22-2616, -2616(1)

appeals—criminal law—evidence
state v. rucker
wyandotte district court—affirmed
NO. 117,143—june 7, 2019

FACTS: Rucker was convicted of first-degree felony murder. He appealed, challenging the sufficiency of the evidence supporting that conviction. He also claimed the district court erred in admitting gruesome photographs of the victim that had no probative value on issues in dispute at trial, and that only inflamed passions of the jury.

ISSUES: (1) Sufficiency of the evidence; (2) admission of photographs

HELD: State alleged the victim was killed while Rucker was “in the commission of” or “attempt to commit” one or more of four inherently dangerous felonies: robbery, rape, aggravated kidnapping, and aggravated burglary. Rucker’s challenge to the sufficiency of the evidence supporting this alternative means crime fails because the evidence considered in the light most favorable to the state supports a jury finding that Rucker committed the four underlying felonies.

At trial, Rucker did not object to the admission of any of the photographs, and stipulated to their admission. Rucker did not preserve this issue for appeal, and merits of his argument are not reached.

STATUTE: K.S.A. 21-3401(b), -3426, -3436(a)(2), (3), (5), (10), -3716 (Furse)

 

Kansas Court of Appeals

 criminal

criminal law—statutes
state v. glover
sumner district court—affirmed
NO. 120,098—june 7, 2019

FACTS: Glover entered unlocked church and entered locked sacristy where he stole items from a locked cabinet. State charged him with burglary. District court dismissed the charge, reasoning the State did not prove Glover entered the building without authorization because church was open to the public. State appealed, arguing the sacristy can be considered a building or structure under the Kansas burglary statute.

ISSUE: (1) Kansas burglary statute—building or structure

HELD: A locked sacristy inside an unlocked church is not a building or structure as the terms are used in K.S.A. 2018 Supp. 21-5807(a). Published and unpublished opinions in Court of Appeals are reviewed as seeming to read into the burglary statute a definition of building or structure that hinges, in part, on whether an individual or entity is renting or leasing a space within the main building. But under plain language of the statute which the Legislature has not modified for 19 years, the sacristy was nothing more than a room within the church building. District court’s dismissal of the burglary charge is affirmed.

STATUTE: K.S.A. 2018 Supp. 21-5807(a)(2)

Tags:  8807  Attorney Discipline  Haskell District  Johnson District  Riley District  Saline District  Sumner District  Wilson District 

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May 31, 2019 Digests

Posted By Administration, Monday, June 3, 2019

Kansas Supreme Court

Attorney Discipline

ORDER OF DISBARMENT
IN THE MATTER OF PAMELA J. THOMPSON
NO. 120,818—MAY 31, 2019

FACTS: A hearing panel found that Thompson violated KRPC 1.15 (safekeeping property); 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation); 8.4(d) (engaging in conduct prejudicial to the administration of justice). The allegations arose after Thompson hired Qualified Plan Solutions to provide administrative services for 401(k) retirement accounts for Thompson and her employees. Thompson was the plan's administrator and trustee. Beginning in January 2016, Thompson withheld funds from her paychecks and her employees' paychecks. But except on one occasion, she did not deposit the funds as required by the plan. It was not until February 2017 that Thompson's employees noticed that their 401(k) accounts were underfunded. Thompson worked with QPS to get the accounts current, including both salary deferrals and earned interest. It was alleged that Thompson got the money to make these deposits by converting money from estate cases without being given approval by the court.  

HEARING PANEL: Thompson stipulated to the violations. The hearing panel noted several aggravating factors, including a dishonest or selfish motive and a pattern of misconduct. The misconduct was somewhat mitigated by Thompson's personal and emotional problems, but the panel did not believe that Thompson's stress and anxiety excused the misconduct. The disciplinary administrator recommended that Thompson be disbarred. Thompson asked that discipline be limited to a one-year suspension. A majority of the hearing panel recommended that Thompson be indefinitely suspended.

HELD: Thompson did not file exceptions to the report and the findings were deemed admitted. After considering the facts, the court agreed with the disciplinary administrator and ordered disbarment. The court found that Thompson's misconduct was too serious to justify a lesser sanction.

criminal 

appeals—criminal procedure—motions
state v. douglas
reno district court—reversed and remanded
court of appeals—affirmed
no. 119,170—may 31, 2019

FACTS: During traffic stop, officer observed a capsule sticking out of Douglas’ pants pocket. Capsule then dropped while Douglas exited the car. Capsule was retrieved and tested positive for methamphetamine. Douglas filed motion to suppress, arguing violation of constitutional rights. District court agreed, stating no description of the capsule was provided to the court, thus no basis to find the detention was based on a reasonable and articulable suspicion. State appealed, citing officer’s testimony about the capsule. Court of appeals reversed and remanded with directions to deny the motion to suppress. Dissenting judge agreed to the reversal, but would remand for district judge to reevaluate findings based on evidence the officer in fact described the capsule observed in Douglas’ pocket. Douglas’ petition for review granted.

ISSUE: (1) Ruling on motion to suppress—reversal and remand

HELD: When a district court judge’s ruling in favor of defense motion to suppress is infected with an obviously incorrect assessment of State’s evidence that is equivalent to an arbitrary disregard of a portion of that evidence, an appellate court cannot be certain if the district judge, once the error was pointed out, would arrive at the same or a different conclusion. In such circumstances, wisest course for appellate court is to reverse and give district judge another chance to review the record. Panel majority’s reversal and remand with directions to draw an opposite conclusion of law short-circuits that chance. Reversed and remanded for further proceedings. Panel’s decision is affirmed but its instructions to the district court are modified.

STATUTE: K.S.A. 22-3216(2)

appeals—criminal procedure—restitution—sentences
state v. johnson
montgomery district court—affirmed in part—vacated in part
no. 117,788—may 31, 2019

FACTS: Johnson entered a no contest plea to charges of felony murder, aggravated kidnapping, aggravated assault, and criminal possession of firearm. Sentencing included: inconsistent references as to whether the life sentence for felony murder included possibility of parole after 25 years or required lifetime postrelease supervision; ambiguity about what sentences were to run concurrent or consecutive; and journal entry stating that restitution was “to be determined (TBD).” Johnson appealed on sentencing claims.

ISSUES: (1) Lack of preservation of consecutive sentencing issue; (2) jurisdiction to impose restitution; (3) illegal sentence aspects requiring correction without remand

HELD: Merits of Johnson’s claim—that district court relied on facts outside the record in sentencing consecutive terms on felony murder and aggravated kidnapping convictions—is not considered. Johnson failed to raise this issue in district court, and does not explain why issue should be considered for first time on appeal.

District court’s failure to follow procedure mandated in State v. Hall, 298 Kan. 978 (2014), and State v. Charles, 298 Kan. 993 (2014), deprived district court of jurisdiction to set restitution later. That portion of journal entry and subsequent nunc pro tunc order indicating restitution remains “TBD” is vacated.

State concedes that judge’s inconsistent statements about parole eligibility after 25 years, not lifetime postrelease supervision, made this aspect of Johnson’s sentence illegal. The lifetime postrelease supervision term imposed at sentencing is vacated. Also, on face of record that clearly shows judge’s intention, no further action is required to correct the criminal possession sentence to make it concurrent with the other three sentences.

STATUTE: K.S.A. 2018 Supp. 21-6620(b)(1), -6820(i), 22-3504(1), -3504(3), -3717(b)(2)

criminal procedure—jurisdiction—motions—sentences—statutes
state v. smith
sedgwick district court—affirmed
court of appeals—affirmed
No. 113,828—may 31, 2019

FACTS: Smith was convicted in 1984 on a guilty plea to charges of burglary and theft. Jail credit not addressed at sentencing or in final journal entry. No appeal from subsequent revocation of probation in the 1984 case. Smith filed 2014 motion for jail credit for time spent in county jail and residential facility. District court denied the motion, finding any jail credit issue had been waived. Smith appealed, arguing broad interpretation of his pro se motion as one filed under K.S.A. 60-1507, or under K.S.A. 22-3504 citing State v. Guzman, 279 Kan. 812 (2005). Court of appeals affirmed in unpublished opinion. Smith petitioned for review, seeking resolution of conflict in court of appeals’ opinions regarding district court’s jurisdiction to review post-conviction jail credit motions.

ISSUES: (1) Jurisdiction; (2) clerical error

HELD: Smith’s failure to raise issue of jail credit on direct appeal does not foreclose a motion under the nun pro tunc provision in K.S.A. 22-3504(2) to review clerical errors in judgments. The words “at any time” in that subsection means Kansas courts, with some exception, have jurisdiction to determine whether a clerical error occurred even after the time for an appeal has passed. Contrary holdings are disapproved in unpublished panel opinions in this case, State v. Muldrow (No. 107291), State v. Blazier (No. 110070), State v. Olson (No. 102226),  State v. Burnett (No. 112681), State v. Brown (No. 111052), State v. Arculeo (No. 110974), State v. Lakin (No. 111060), State v. Walker (No. 109309), and any other court of appeals decision holding that a criminal defendant cannot move for correction of jail credit if the defendant failed to raise the issue in a direct appeal.

Summary dismissal of Smith’s motion was warranted. Smith requested 18 months of jail credit, but identified no clerical error. Instead, Smith makes conclusory statements, presents no evidentiary support and provides nothing in the record warranting relief.

CONCURRENCE AND DISSENT (Luckert, J.): Agrees that Smith’s failure to raise issue of jail credit on direct appeal did not result in waiver of the issue if relief is sought under K.S.A. 22-3504(2). Disagrees with majority’s conclusion that district court can be affirmed because Smith failed to allege a jurisdictional basis for his motion. Reasons cited for why the merits of Smith’s motion cannot be evaluated at this time, including whether standard for “clerical error” stated in State v. Storer, 53 Kan.App.2d 1 (2016), should be adopted. Would remand to allow parties to develop their procedural, factual and legal arguments about whether a clerical error occurred.

STATUTES: K.S.A. 2018 Sup. 21-6615, 22-3504(1), -3504(2), -3717(d)(1), -3717(q); K.S.A. 21-4614, 22-3504(1), -3504(2), 22-3722, 60-1507

Kansas Court of Appeals

Civil

EXHAUSTION OF ADMINISTRATIVE REMEDIES—UNEMPLOYMENT
LUCKETT V. KANSAS EMPLOYMENT SECURITY BOARD OF REVIEW
GEARY DISTRICT COURT—REVERSED AND REMANDED
NO. 119,717—MAY 31, 2019

FACTS: After losing her job, Luckett filed for weekly unemployment insurance benefit claims with the Kansas Department of Labor. Although some of her claims were denied, Luckett was awarded unemployment benefits for a certain period of time. In a letter dated more than 60 days after the last decision was rendered, Luckett sought payment of the benefits that were awarded as well as reconsideration of another decision. The referee who received Luckett's letter construed it as a motion to reconsider and denied it on grounds that it was untimely and failed to establish excusable neglect for a late appeal from a denial. The referee did not address Luckett's claim that she had not yet been paid the benefits that were awarded to her. Luckett again sent a letter clarifying that she wanted to be paid the benefits that she was awarded. Luckett filed a petition for judicial review. The district court ultimately granted KDOL's motion to dismiss, finding that Luckett's appeals were untimely. She appealed.

ISSUES: (1) Correct standard; (2) finding of excusable neglect; (3) motion to amend

HELD: Luckett's appeal was based on the KJRA. For that reason, a summary judgment standard is inappropriate. It is undisputed that Luckett's November 2017 letter was filed beyond the 16-day time limit established by statute. But that letter was not an appeal of an adverse decision. And the examiner's original decision allowed for reconsideration within one year assuming that Luckett provided some necessary information. That was what Luckett was attempting to do. The KDOL erred by construing Luckett's letter as an appeal. Luckett's filings were not untimely, and she was not required to exhaust administrative remedies before receiving relief. Luckett had claims consistent with a mandamus action. It was error to dismiss Luckett's petition for review without considering her motion to amend.

STATUTES: K.S.A. 2018 Supp. 44-703(d), -709(b)(2), -709(b)(3), -709(i), 60-215(a)(2), 77-603(a), -621(a)(1), -621(c)(4), -621(c)(7), -621(d); K.S.A. 60-

Criminal

criminal procedure—motions—sentences
state v. gonzalez
sedgwick district court—affirmed
no. 119,311—may 31, 2019

FACTS: Gonzalez pleaded guilty to criminal charges in 2012 and was granted probation. In 2013, he violated probation and served an 8-month prison sentence. In 2016, he was ordered to be deported. He filed a 2017 motion to withdraw his plea, arguing his attorney had not explicitly discussed deportation. He then amended his motion to claim excusable neglect for his untimely motion, citing his belief at the time of his plea that he was a lawful permanent resident non-citizen entitled to same protections as a United States citizen. District court denied the motion, finding Gonzalez failed to show excusable neglect.

ISSUE: (1) Post-sentence motion to withdraw plea

HELD: In this case, the acknowledgment of rights and entry of plea form that Gonzalez received during his plea hearing, reviewed with his attorney, understood and signed satisfied the requirements in Padilla v. Kentucky, 559 U.S. 356 (2010), as its language clearly identified deportation as a likely outcome instead of a mere abstract possibility.

STATUTE: K.S.A. 2018 Supp. 22-3210(d)(2), -3210(e)(1)(A), -3210(e)(2), -3608(c)

Tags:  8806  Attorney Discipline  Geary District  Montgomery District  Reno District  Sedgwick District  Weekly20190604 

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