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September 5 and September 7, 2018 Digests

Posted By Administration, Monday, September 10, 2018

Kansas Supreme Court

ATTORNEY DISCIPLINE

ORDER OF REINSTATEMENT
IN THE MATTER OF LYLE LOUIS ODO
NO. 114,863 – SEPTEMBER 5, 2018

FACTS: Odo's license to practice law in Kansas was suspended for one year in July 2016. In July 2017, Odo filed a petition for reinstatement. After a hearing, the Kansas Board for Discipline of Attorneys recommended that the petition for reinstatement be granted. After careful consideration, the court accepted the panel's findings and grants the petition for reinstatement.

CIVIL

CONTRACTS—PHYSICIANS
CENTRAL KANSAS MEDICAL CENTER V. HATESOHL
BARTON DISTRICT COURT—AFFIRMED
COURT OF APPEALS—REVERSED
NO. 113,675—SEPTEMBER 7, 2018

FACTS: Central Kansas Medical Center is a nonprofit corporation which is licensed to operate an ambulatory surgical center. CKMC contracted with Dr. Hatesohl to provide family medicine services. The contract contained a postemployment clause which prevented Dr. Hatesohl from practicing medicine within a 50-mile radius of CKMC. Although he was dissatisfied with the way that the family practice merged with an urgent care facility, Dr. Hatesohl worked the full term of his contract. When he left, CKMC let him know that it would enforce all post-employment covenants. Dr. Hatesohl responded that he believed his employment contract was void because it violated the prohibition against the corporate practice of medicine doctrine. The day after his contract expired, Dr. Hatesohl entered a new contract with Great Bend Regional Hospital to practice family medicine. CKMC sought injunctive relief and damages alleging breach of contract. Dr. Hatesohl countered with a claim that CKMC's ambulatory surgical center license did not cover family medicine. The district court agreed and granted Dr. Hatesohl's motion for summary judgment, finding his employment contract was illegal.  The court of appeals reversed and the petition for review was granted.

ISSUE: (1) Validity of employment contract

HELD: The practice of medicine is limited to licensed persons, not corporations. But a corporation which is licensed by the State may employ a physician to provide medical services, with the caveat that the physician may not practice medicine that the corporation is not licensed to provide. Since CKMC only held an ambulatory surgical center license, its power to provide family medicine services through Dr. Hatesohl had to flow from that license. It did not. An ambulatory surgical center license is not broad enough to encompass a family practice. Because Dr. Hatesohl was hired to practice medicine that CKMC was not licensed to perform, his employment contract violated the corporate practice of medicine doctrine and was void.

CONCURRENCE (Stegall, J.): The corporate practice of medicine doctrine should be abandoned because it is a judicial intrusion in to the legislative arena and was created to aid special interest groups. The decision of the majority is correct because the court was not asked to overturn the doctrine and stare decisis compels this decision.

STATUTES: K.S.A. 2017 Supp. 17-2707(b)(9), 40-3401(f), 60-256(c)(2), 65-2803(a); K.S.A. 17-2709(a), 48-1603(o), -1607(a), 65-425(a), -425(b), -425(e), -425(f), -425(h), -427, -431(a), -431(c)

 

INSURANCE—STARE DECISIS
MCCULLOUGH V. WILSON
WYANDOTTE DISTRICT COURT — AFFIRMED
COURT OF APPEALS — AFFIRMED
NO. 115,067—SEPTEMBER 7, 2018

FACTS: Wilson was driving excessively fast when he collided with the back of car carrying McCullough and his passenger, Risley. McCullough and Risley filed a lawsuit against Wilson, seeking monetary damages for lost wages, pain and suffering, and medical expenses. Risley's medical expenses were paid by the PIP coverage provided by his AAA insurance. But AAA never requested reimbursement from Wilson's insurance company. After a jury decided in Risley's favor, Wilson sought to overturn part of the verdict on grounds that Risley's cause of action passed to AAA and that only AAA could recover damages for Risley's medical expenses. The district court denied the motion and the Court of Appeals affirmed. Wilson's petition for review was granted.

ISSUES: (1) Assignment of subrogation rights

HELD: The doctrine of stare decisis suggests that the district court's decision should be affirmed. Especially in cases involving contracts, reliance on prior precedent is important. Because there is no reason to depart from prior holdings, Risley is entitled to the entire verdict awarded by the jury, including the portion covering medical expenses.

STATUTE: K.S.A. 40-3103, -3113a, -3113a(c)

criminal

probation—sentences—statutes
State v. Clapp
reno district court—reversed and remanded
court of appeals—reversed
No. 112,842—September 7, 2018

FACTS: Clapp was sentenced to a 118-month prison term and granted a downward dispositional departure to 36 months probation with a 60-day jail sanction to be suspended when inpatient drug treatment had been arranged. State filed its first motion to revoke in January 2014. District court revoked probation and imposed a180-day prison sanction. State filed a second motion to revoke in August 2014. District court revoked probation and imposed the underlying sentence, specifically stating he did not feel Clapp valued Community Corrections as a way to help change how Clapp thought and lived his life. District court agreed that Clapp had not committed a new crime, had not absconded, had a job, and was still in treatment, but commented on the convictions leading to Clapp’s probation, his criminal history, and his dishonesty with his intensive supervision officer. Clapp appealed, claiming in part the district court failed to make the statutory findings required by K.S.A. 2014 Supp. 22-3716(c)(9) to bypass the statutory intermediate sanctions for parole violators. Court of appeals affirmed in an unpublished opinion, finding in part that K.S.A. 2014 Supp. 22-3716 does not require district court to make statutory findings to bypass intermediate sanctions when a violator has already served a 180-day intermediate sanction, and that, even if required in this case, the district court implicitly satisfied the particularity requirement to revoke based upon public safety. Clapp’s petition for review was granted.

ISSUE: Probation violation sanctions under 2013 and 2014 Versions of K.S.A. 22-3716

HELD: District court’s revocation of Clapp’s probation under subsection (c)(1)(E) for a second probation violation did not conform to the graduated sanctioning scheme in the 2013 and 2014 versions of K.S.A. 22-3716. For a second violation, the district court could have utilized the prison sanction of 120- or 180-days under subsections (c)(1)(C)-(D). Imposition of the underlying sentence on a probation violator was not authorized under subsection (c)(1)(E) because no previous jail sanction pursuant to K.S.A. 2014 Supp. 22-3716(b)(4)(A)-(B) or K.S.A. 2014 Supp. 22-3716(c)(1)(B) had been imposed, notwithstanding the 60-day jail term in the original sentence or the district court’s error in imposing a 180-day sanction for Clapp’s first violation. Nor did the district court set forth the particularized reasons required by K.S.A. Supp. 22-3716(c)(9) to bypass the graduated intermediate sanctions. Instead, district court’s remarks were akin to historical reasoning for revoking probation prior to the 2013 amendment to K.S.A. 22-3716. Reversed and remanded for a new dispositional hearing to comply with K.S.A. 2014 Supp. 22-3716.

STATUTES: K.S.A. 2014 Supp. 22-3716, -3716(b), -3716(b)(4)(A)-(B), -3716(c)(1)(A)-(E), -3716(c)(8), -3716(c)(9), -3716(c)(12); K.S.A. 2013 Supp. 22-3716(c)(1)(D)-(E), -3716(c)(8), -3716(c)(9); and K.S.A. 22-3504(1)

Tags:  Attorney Discipline  Barton District  probation  Reno District  sentencing  statutes  Wyandotte District 

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April 28, 2017 Digests

Posted By Administration, Tuesday, May 2, 2017
Updated: Monday, September 10, 2018

Kansas Supreme Court

CRIMINAL

criminal law—evidence—venue
state v. chapman
barton district court—affirmed
no. 113,962—april 28, 2017

FACTS: Jury convicted Chapman of first-degree murder. On appeal he claimed district court erred by denying Chapman’s repeated requests for change of venue due to pretrial publicity including publicity generated about a defense request to remove or cover a provocative tattoo, and Chapman’s family. He also claimed trial court erred by permitting State to cross examine him about a text message that was hearsay and unduly prejudicial.

ISSUES: (1) Venue, (2) hearsay evidence

HELD: Factors to be considered when determining whether a change of venue is necessary are stated and applied to facts of case, finding a few could favor a change of venue but balance of all factors does not. No abuse of district court’s discretion in denying Chapman’s requests for change of venue.

Any error in the admission of the text message was harmless on the facts and record of this case. No reasonable probability the prosecutor’s question about the text message affected the trial’s outcome.  

STATUTES: K.S.A. 2016 Supp. 22-3601(b)(3), 60-261, -460(i)(2); K.S.A. 22-2616(1)

 

criminal law—evidence—jury instructions
state v. stewart
johnson district court—affirmed
no. 111,995—April 28, 2017

FACTS: Stewart was convicted of offenses including felony murder and aggravated robbery.  Relevant to issues raised on appeal, the trial judge adopted the pretrial judge’s rejection of Stewart’s request for a Frye hearing about blood spatter evidence, and denied Stewart’s renewed motion for a hearing; reviewed competing evaluations of Stewart’s mental competency and found Stewart competent to stand trial; and used PIK Crim. 3rd 56.02-A to instruct jury on State’s alternative theories of first-degree murder—premeditated murder and felony murder. On appeal Stewart claimed: (1) district court erred in instructing jury to consider lesser included offenses for both alternative theories of first-degree murder, despite felony murder having no lesser included offenses; (2) district court failed to instruct jury that the justified force in the self-defense jury instruction could not satisfy the taking-by-force element of aggravated robbery; (3) district court should have found him incompetent to stand trial based on evidence of low IQ and corresponding impaired cognitive function; (4) error to admit blood spatter evidence over Stewart’s objection based on Frye; and (5) cumulative error denied him a fair trial.

ISSUES: (1) Jury instructions—alternative theories of first-degree murder, (2) jury instruction on force, (3) competency to stand trial, (4) blood spatter evidence, (5) cumulative error

HELD: District court appropriately instructed jury to simultaneously consider both alternative theories of proving first-degree murder, and upon finding Stewart guilty on either or both theories, to sign the verdict form, ending deliberations without consideration to any lesser included homicide offenses.

In response to jury question about what constituted force for aggravated robbery, Stewart failed to dispel any purported confusion about force. If any instructional error, defense’s unequivocal affirmative assertion that the instruction packet contained all the instructions Stewart wanted precludes first-time-on-appeal argument that jury instructions were clearly erroneous.

District court’s finding that Stewart was competent to stand trial is affirmed. District court acted well within its discretion by relying on opinions of State’s experts, after carefully weighing conflicting evidence.

Any abuse of trial court’s discretion in failing to independently consider the merits of Stewart’s Frye objection is harmless on the record in this case.

Cumulative effect of one possible error by trial court in not ruling on merits of Stewart’s Frye objection, and of one instructional error invited by defense, did not substantially prejudice Stewart and deny him a fair trial.      

STATUTES: K.S.A. 2015 Supp. 21-5402(d), -5402(e), 22-3601(b)(3)-(4); K.S.A. 21-3426, -3427, 22-3219, -3301(1), -3303(1), -3302(1), -3414(3), 60-404

 

Kansas Court of Appeals

CIVIL

DISCOVERY—HABEAS CORPUS
WHITE V. SHIPMAN
LEAVENWORTH DISTRICT COURT—AFFIRMED
NO. 116,232—APRIL 28, 2017

FACTS: White filed a K.S.A. 60-1501 petition after Department of Corrections staff withheld from White two magazines and a book; DOC staff informed White that the content was either a safety threat or too sexually explicit. White challenged the seizure of this material as a First Amendment violation and also claimed the DOC regulations were unconstitutionally vague and overbroad. White filed requests for discovery with DOC. The request was met with objection from DOC, which claimed that the materials requested by White created safety concerns. The district court ruled that the full array of discovery was not available in a K.S.A. 60-1501 proceeding and denied White's request. White's K.S.A. 60-1501 petition was denied after an evidentiary hearing, and he appealed.

ISSUES: (1) Do the rules of discovery apply to a K.S.A. 60-1501 proceeding, (2) was White entitled to an evidentiary hearing

HELD: K.S.A. 60-1501 proceedings are not subject to the ordinary rules of civil procedure. This includes the rules of discovery. The heightened pleading requirements for K.S.A. 60-1501 petitions almost always make discovery unnecessary. And even if White was entitled to discovery, none of the requested discovery was relevant to this action. White arguably received two evidentiary hearings before the district court. White chose to use that opportunity to continue to argue his request for discovery, but that was a strategic choice on his part.

STATUTES: K.S.A. 2016 Supp. 60-201(b), -226(b), -265, -267, -1503(a), -1505(a); K.S.A. 60-1501, -1507

 

CRIMINAL

criminal law—sentences—statutes
state v. carter
sedgwick district court—affirmed
no. 114,556—april 28, 2017

FACTS: Jury found Carter guilty of aggravated battery in violation of K.S.A. 2015 Supp. 21-5413(b)(1)(A), and also found the crime was an act of domestic violence. On appeal, Carter claimed clear error by trial court in failing to instruct jury on domestic battery as a lesser included offense of aggravated battery. He also claimed district court unconstitutionally considered Carter’s criminal history to enhance the sentence.

ISSUES: (1) Lesser included offenses of aggravated burglary, (2) sentencing

HELD: Domestic battery, K.S.A. 2015 Supp. 21-5414(a)(1), is not a lesser included offense of aggravated battery, K.S.A. 2015 Supp. 21-5413(b)(1)(A). Trial court did not err in failing to instruct jury on crime of domestic battery as a lesser included offense. Panel examines cases cited by Carter, and expressly disagrees with the conclusion in State v. Howard, No. 102738 (Kan.App. 2011)(unpublished).

Controlling Kansas precedent defeats Carter’s Apprendi sentencing claim.

STATUTE: K.S.A. 2015 Supp. 21-5109(b), -5413(a)(1), -5413(b)(1)(A)-(B), -5413(g)(2)(B)-(D), -5414(a), 22-3414(3), -4616

 

constitutional law—criminal law—sentences
state v. fahnert
johnson district court—sentence vacated and case remanded with directions
no. 115,058—april 28, 2017

FACTS: District court classified Fahnert’s prior Missouri burglary conviction as a person felony for purposes of scoring his criminal history. Fahnert appealed.

ISSUE: Classification of Prior Out-of-State Conviction

HELD: Court reviewed constitutional protections in Mathis v. United States, 579 U.S. __ (2016), Descamps v United States, 570 U.S. __ (2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000), as applied in State v. Dickey,  301 Kan. 1018 (2015). K.S.A. 2016 Supp. 21-6811(e) governs classification of a prior conviction as a person or nonperson offense for purposes of scoring criminal history when the prior offense qualifies as both an out-of-state conviction and as a prior burglary conviction. Under facts in this case, district court was constitutionally prohibited from classifying Fahnert’s prior burglary conviction as a person felony because doing so necessitated making or adopting a factual finding that the prior burglary involved a dwelling. This went beyond simply identifying the statutory elements of the prior burglary conviction. Under Dickey, Fahnert’s Missouri burglary conviction should have been classified as a nonperson felony. Sentence is vacated and case remanded for resentencing. Conflict noted between this decision and State v. Sodders, No. 115,366 (Kan.App. 2017)(unpublished), petition for review filed March 3, 2017.

STATUTES: K.S.A. 2016 Supp. 21-5111(k), -5807, -6811 et seq., -6811(d), -6811(e); K.S.A. 2014 Supp. 21-5807; K.S.A. 21-3715(a), -4711(d), -4711(e)

criminal law—sentences
state v. mcalister
Finney District Court—sentence vacated and case remanded with directions
no. 115,887—april 28, 2017

FACTS: McAllister’s convictions and sentences for 1996 offenses were affirmed on appeal. In 2015, he filed motions to correct his illegal sentences. Citing State v. Dickey, 301 Kan. 1018 (2015), he claimed the 1992 Missouri burglary-related convictions in his criminal history should have been scored as nonperson felonies. District court denied the motions as procedurally barred by res judicata, and because holding in Dickey did not apply retroactively to McAlister’s sentences. McAlister appealed. State did not preserve res judicata argument on appeal, but argued McAlister was not entitled to retroactive relief under Dickey because unlike Dickey, McAlister’s sentences became final prior to Apprendi.

ISSUE: Motion to correct illegal sentence

HELD: Holding in Dickey was reviewed, as clarified by State v. Dickey, 305 Kan. 217 (2016)(Dickey II). The proper classification of a prior crime as a person or nonperson felony for criminal history purposes is a question of state statutory law, not constitutional law. Accordingly, a defendant whose sentence is illegal based on holding in State v. Dickey, 301 Kan. 1018 (2015), is entitled to receive a corrected sentence at any time, even if the sentence became final prior to Apprendi. District court erred in finding McAlister’s motions to correct his illegal sentences were procedurally barred. Remanded for resentencing based on the correct criminal history score.

CONCURRENCE (Gardner, J.): Concurs in the result because panel is bound by holding in Dickey II, but does not read Dickey II as broadly as the majority, and does not believe the “at any time” language in K.S.A. 22-3504 means an illegal sentence can be corrected in any manner under any circumstances, or repeatedly litigated.

STATUTES: K.S.A. 2016 Supp. 21-6811(d); K.S.A. 2014 Supp. 21-5807(a)(1), -6811(d); K.S.A. 21-3715(a), 22-3501(1), -3504(1), -3628(c), 60-1501(b), -1507(f)(1); K.S.A. 1991 Supp. 21-3715

Tags:  Barton District  Finney District  Johnson District  Leavenworth District  Sedgwick District 

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