Print Page | Contact Us | Sign In | Register
Appellate Court Digests
Blog Home All Blogs
@@WEBSITE_ID@@

 

Search all posts for:   

 

Top tags: criminal procedure  statutes  Constitutional Law  Attorney Discipline  evidence  Sedgwick District Court  Criminal Law  Sedgwick District  motions  Appeals  jury instructions  Johnson District Court  sentencing  Shawnee District Court  Wyandotte District  jurisdiction  Shawnee District  juries  Sentences  Fourth Amendment  habeas corpus  Johnson District  Reno District  Saline District  Sedgwick  8807  appellate procedure  Reno District Court  search and seizure  contracts 

June 12, 2020 Digests

Posted By Administration, Monday, June 15, 2020

Kansas Supreme Court

 

criminal 

attorneys and clients—criminal procedure—motions—sentencing
state v. adams
sedgwick district court—affirmed
no. 120,475—june 12, 2020

FACTS: District court allowed Adams to dismiss his appointed attorney and to proceed pro se at trial, resulting in plea agreement for guilty plea to criminal charges including premeditated first-degree murder. His request for reappointment of attorney for sentencing was granted. Sentence was imposed, which included a hard 50 sentence, following the plea agreement. Adams later filed motion to withdraw plea stating he was prepared to offer evidence from Iowa and Kansas departments of corrections of his unmedicated schizophrenia to show his plea was involuntary. He also filed K.S.A. 60-1507 motion alleging appointed counsel was ineffective because he did not address at sentencing whether Adams had an unmedicated mental health diagnosis, or have Adams undergo a mental health evaluation. District court held preliminary hearing with new appointed counsel and denied both motions. Adams appealed.

ISSUES: (1) Post-sentence motion to withdraw plea; (2) ineffective assistance of counsel at sentencing

HELD: District court properly concluded there was no manifest injustice because even if Adams had been allowed to present evidence regarding his previous mental health status, that diagnosis was not dispositive and the overall record would still conclusively show he was entitled to no relief.

            Under totality of circumstances, appointed counsel’s decision to forego a mental health evaluation of Adams does not constitute deficient representation when record shows Adams was sufficiently engaged in a rational, thoughtful, knowing way throughout the proceeding. There were no red flags in the record to suggest appointed counsel should have investigated Adams’s mental health. Adams’s reliance on “duty to investigate” in State v. Orr, 262 Kan. 312 (1997), is misplaced.

STATUTES: K.S.A. 2019 Supp. 22-3210(d)(2); K.S.A. 22-3301(1), 60-1507

criminal law—criminal procedure—evidence—statutes
state v. dinkel
saline district court—remanded with directions; court of appeals—reversed
no. 113,705—june 12, 2020

FACTS: Jury convicted a school counselor of two counts of rape of 13-yr-old boy (K.H.). Dinkel appealed on claims related to her defense that the K.H. had raped and then blackmailed her into continuing sexual encounters. Dinkel argued the district court’s exclusion of this evidence violated evidentiary rules and her constitutional right to present a defense. Court of appeals affirmed in unpublished opinion, concluding the rape of a child has no mental culpability requirement thus Dinkel’s intent was irrelevant. Review granted.

ISSUE: K.S.A. 2012 Supp. 21-5503(a)(3) - Evidence relevant to voluntary act requirement

HELD: Court of Appeals erred in concluding that whether K.H. forced the sexual encounter was irrelevant. As defined in K.S.A. 2012 Supp. 21-5503(a)(3), rape of a child under age 14 requires a voluntary act on the part of the defendant. Dinkel’s claim that she was forcibly raped is relevant since the rape of Dinkel negates the voluntary act requirement of rape of a child under 14. Jurisdiction retained while case is remanded to district court for Van Cleave hearing to determine whether defense trial counsel was ineffective for failing to argue the State never established the voluntary act requirement.  

STATUTE: K.S.A. 2012 Supp. 21-5201, -5202, -5202(a), -5202(b), -5202(h), -5202(d), -5203(b), -5501(a), -5503(a)(3)

constitutional law—criminal procedure—preemption—statutes
state v. Garcia
johnson district court—affirmed; court of appeals—affirmed
no. 112,502—june 12, 2020

FACTS: Kansas Supreme Court reversed Garcia’s jury conviction for identity theft, holding prosecution based on the use of his W-4 form was preempted by the Immigration and Reform and Control Act (IRCA). State v. Garcia, 306 Kan. 1113 (2017). State filed writ of certiorari in this and companion cases. United States Supreme Court reversed and remanded the state supreme court’s judgment, holding state law prosecutions were not preempted by the IRCA.

ISSUE: PreemptionImmigration Reform and Control Act of 1986

HELD: Consistent with Kansas v. Garcia, 589 U.S. __ (2020), a Kansas prosecution for identity theft or making false information based on information a defendant provides on employment forms, with the exception of the I-9 form, is not preempted by the IRCA. Review of whether there was sufficient evidence of intent to defraud, and whether district court’s failure to give unanimity instruction was clearly erroneous, was improvidently granted. These issues are not addressed on the merits.

STATUTES: 8 U.S.C. § 1324a(b)(5); K.S.A. 2012 Supp. 21-6107

constitutional law—evidence—motions
state v. Glover
douglas district court—reversed; court of appeals—affirmed
no. 116,446—june 12, 2020

FACTS: District court granted Glover’s motion to suppress evidence obtained during a traffic stop, finding the officer lacked reasonable suspicion of illegal activity when he stopped the truck in violation of Fourth Amendment. Court of Appeals reversed. State v. Glover,  54 Kan. App. 2d 377 (2017). Kansas Supreme Court reversed and affirmed the district court’s suppression ruling. 308 Kan. 590 (2018). State’s writ of certiorari granted.

ISSUE: Fourth Amendmenttraffic stop

HELD: Consistent with Kansas v. Glover, 589 U.S. __ (2020), an investigative traffic stop made after running a vehicle’s license plate and learning the registered owner’s driver’s license has been revoked is reasonable under the Fourth Amendment if the officer lacks information negating an inference that the owner is driving the vehicle. Here, the stipulated facts reveal no information known by the deputy sufficient to rebut that reasonable inference. Kansas Supreme Court’s judgment is vacated and case is remanded to district court for further proceedings.

STATUTES: None

constitutional law—criminal procedure—preemption—statutes
state v. morales
johnson district court—affirmed; court of appeals—affirmed
no. 111,904—june 12 2020

FACTS: Kansas Supreme Court reversed Morales’ convictions for identity theft and making a false information, holding prosecution based on use of a Social Security number belonging to another person for employment was preempted by the Immigration and Reform and Control Act (IRCA). State v. Morales, 306 Kan. 1100 (2017). State filed writ of certiorari in this and companion cases. United States Supreme Court reversed and remanded the state supreme court’s judgment, holding state law prosecutions were not preempted by the IRCA.

ISSUE: PreemptionImmigration Reform and Control Act of 1986

HELD: Consistent with Kansas v. Garcia, 589 U.S. __ (2020), a Kansas prosecution for identity theft or making false information based on information a defendant provides on employment forms, with the exception of the I-9 form, is not preempted by the IRCA. Review of whether there was sufficient evidence of intent to defraud was improvidently granted. This issue is not addressed on the merits.

STATUTE: 8 U.S.C. § 1324a(b)(5)

criminal procedure—restitution—sentencing
state v. tucker
wyandotte district court—reversed
no. 119,242—june 12, 2020

FACTS: Tucker pled guilty to one count of capital murder and was sentenced to prison for life without parole. District court ordered payment of $5,000 in restitution without an explicit order for payment during Tucker’s incarceration, and acknowledged that restitution will never be paid. Tucker appealed.

ISSUE: Restitutionunworkable plan

HELD: Under circumstances in this case, district court abused its discretion by ordering an indigent criminal defendant sentenced to life in prison without possibility of parole to pay restitution even while recognizing the restitution would not be paid. State v. Holt, 305 Kan. 839 (2017), State v. Shank, 304 Kan. 89 (2016), and State v. Alcala,  301 Kan. 832 (2015), are distinguished. Restitution is the rule, and unworkability is the exception. Here, Tucker met the burden of establishing that the restitution plan was unworkable. Restitution order is reversed.

STATUTE: K.S.A. 2015 Supp. 21-6604(b)(1)

 

Kansas Court of Appeals

Civil

ADMINISTRATIVE LAW—JURISDICTION
BRUNGARDT V. KANSAS DEPARTMENT OF REVENUE
FINNEY DISTRICT COURT—REVERSED AND REMANDED
NO. 120,409—JUNE 12, 2020

FACTS: Corporal Kerley arrested Brungardt for driving under the influence. Corporal Kerley administered a breath test, following the mandatory procedures for the Intoxilyzer 9000 machine. The machine allows officers to fill out the required forms—including the DC-27 certification form—electronically. Because his blood-alcohol level exceeded legal limits, Brungardt's driver's license was administratively suspended by the Kansas Department of Revenue. In requesting an administrative hearing, Brungardt claimed, among other things, that the DC-27 form was invalid because it lacked an original, non-electronic signature. Although the hearing officer affirmed his suspension, the district court reversed during judicial review. The court found no flaws in Corporal Kerley's performance but ruled that Corporal Kerley had physically signed the machine when he created his electronic signature profile, before Brungardt's test was performed. K.S.A. 8-1002(b) establishes that certification of the DC-27 form occurs upon signing, and the district court reasoned that Corporal Kerley signed a blank page when he established his signature profile. The department appealed.

ISSUES: (1) Jurisdiction; (2) validity of electronic signature

HELD: Brungardt's petition for judicial review included his claim that the DC-27 form was invalid. Even though he didn't argue the exact grounds relied on by the district court when overturning the suspension, Brungardt gave adequate notice that the validity of the DC-27 was in question. This gave the district court jurisdiction to rule. "Signing" encompasses more activity than merely writing a name, and Kansas law recognizes electronic signatures. It is the intent of signing, not the physical form, which controls the effectiveness of the signature. Corporal Kerley followed the procedures of K.S.A. 8-1002(b) and affixed his signature when done. The district court improperly interpreted the statute and erred by reversing the suspension of Brungardt's driver's license.

STATUTES: K.S.A. 2019 Supp. 8-1001, -1002(a), -1002(b), -1002(f); K.S.A. 77-614(b)(6)

Criminal

EQUAL PROTECTION—SEX CRIMES
STATE V. LITTLE
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 120,214—JUNE 12, 2020

FACTS: Little was convicted of multiple, high-level felonies, including rape and aggravated criminal sodomy. These convictions meant that on top of his prison sentence, Little was given a lifetime term of postrelease supervision. Little appealed, arguing that this lifetime term of postrelease violated his right to equal protection.

ISSUE: (1) Equal protection

HELD: Equal protection requires that similarly situated people be treated alike. Little compares his postrelease term to the shorter terms given to people who are convicted of other serious felonies, like murder. But sex offenders are not similarly situated to people convicted of murder. Individuals convicted of certain sex offenses have much higher rates of recidivism, and the lifetime term of postrelease supervision serves the dual purpose of allowing rehabilitation while also protecting the public from future offenses.

STATUTE: K.S.A. 2008 Supp. 22-3717(d)(1)(G)

Tags:  administrative law  Attorneys and Clients  Constitutional Law  criminal law  criminal procedure  equal protection  evidence  jurisdiction  motions  preemption  restitution  sentencing  sex crimes  statutes 

Share |
PermalinkComments (0)
 

May 29, 2020 Digests

Posted By Administration, Monday, June 1, 2020

Kansas Supreme Court

criminal 

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

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

ISSUE: Post-sentencing motion to withdraw plea

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

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

 

Kansas Court of Appeals

criminal

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

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

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

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

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

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

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

Share |
PermalinkComments (0)
 

May 22, 2020 Digests

Posted By Administration, Tuesday, May 26, 2020

Kansas Court of Appeals

criminal

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Share |
PermalinkComments (0)
 

May 1, 2020 Digests

Posted By Administration, Monday, May 4, 2020

Kansas Supreme Court

criminal

constitutional law—criminal law—criminal procedure—due process—jury instructions
state v. craig
geary district court—affirmed
No. 119,660—may 1, 2020

FACTS: Craig was charged with first-degree murder under theories of premeditated murder and felony murder, conspiracy to commit first-degree premeditated murder, aggravated robbery, conspiracy to commit aggravated robbery, and criminal possession of firearm by a convicted felon. After district court instructed jury on felony murder, premeditated murder, and intentional second-degree murder as a lesser included offense of premeditated murder, jury found Craig guilty of both first-degree felony murder and second-degree intentional murder. Craig filed motion for new trial because jury convicted him of two murder offenses for the same killing. District court denied the motion and instead sentenced Craig on the more serious felony murder. Craig appealed claiming the two murder convictions for the same killing violated his due process rights, and after jury was discharged the two guilty findings were legally irreconcilable. He also claimed the district court should have instructed jury on voluntary intoxication given evidence of Craig’s use of alcohol and marijuana and unclear communication shortly before the shooting;

ISSUES: (1) Two murder convictions for the same killing; (2) voluntary intoxication instruction

HELD: District court’s jury instructions in this case are examined, finding them to be legally correct. Craig failed to show that his first-degree murder sentence was imposed in violation of due process right to have jury find each element of the offense beyond a reasonable doubt, or that jury’ first- and second-degree murder verdicts were so irreconcilable as to require a new trial. Irreconcilable verdicts in State v. Hernandez, 294 Kan. 200 (2012), are distinguished. District court properly sentenced Craig on the first-degree felony-murder conviction.

            Question of whether conspiracy to commit a robbery is a specific intent crime, making a voluntary intoxication instruction legally appropriate, remains unresolved in this case because such an instruction was not factually appropriate. Evidence about Craig’s state of mind does not establish any impairment that deprived him of the ability to form the requisite mens rea; no evidence of any memory loss or inability to recall events before or during commission of the crimes; and Craig never relied on voluntary intoxication in defending himself.

STATUTES: K.S.A. 2019 Supp. 21-5109(b)(1), -5402(a)(2), -5402(d), -5403(a)(1), 22-3414(3), -3601(b), -5205(b); K.S.A. 22-3421, 60-2101(b)

constitutional law—criminal procedure—evidence—Fifth Amendment—motions
state v. lemmie
Saline district court—affirmed
No. 119,439—may 1, 2020

FACTS: For shooting and killing a victim during a robbery, jury convicted Lemmie of first-degree felony murder, aggravated robbery, conspiracy to commit aggravated robbery, criminal possession of a firearm, fleeing and eluding, and interference with law enforcement. In pretrial motion to suppress evidence obtained and derived from his phones, Lemmie alleged a detective obtained the phone passcodes in violation of his Fifth Amendment right against self-incrimination. District court denied that motion, finding disclosure of the passcodes was not compelled and the codes were not testimonial. Lemmie appealed, claiming: (1) the detective’s testimony about Lemmie giving her the phone passcodes violated his constitutional right against self-incrimination; (2) district court erred by admitting two statements made by a coconspirator after Lemmie shot the victim, and by asking State if the contemporaneous statement hearsay exception applied; (3) insufficient evidence supported his first-degree murder conviction; (4) district court erred by admitting K.S.A. 60-455 testimony that Lemmie was upset over a missing methamphetamine pipe.

ISSUES: (1) Fifth Amendment—testimonial status of passcodes and passwords; (2) hearsay evidence; (3) sufficiency of the evidence, (4) K.S.A. 60-455 evidence, (5) cumulative error

HELD: Kansas Supreme Court has not yet addressed the “rich and rapidly developing area of the law” of the testimonial status of passcodes and passwords, and does not do so in this case. Any possible constitutional error arising from district court’s refusal to suppress evidence that a detective obtained phone passcodes from Lemmie was harmless. No incriminating evidence from the phones was introduced at trial.:

            District court did not err in admitting the coconspirator’s two statements. Even assuming the statements qualified as hearsay, they were admissible as statements of a coconspirator, K.S.A. 60-460(i)(2), one of the grounds on which the district court judge relied. A district judge admitting evidence on two grounds, including one originating with the court, when the one already advanced by a party would suffice is not judicial misconduct.

            State provided more than ample evidence to convict Lemmie of first-degree murder.

            No abuse of district court’s discretion arising from admission of K.S.A. 2019 Supp. 60-455 evidence of Lemmie being upset over a missing methamphetamine pipe. No error in district court’s conclusion that the missing methamphetamine pipe was relevant to motive.

            Cumulative error doctrine does not apply where there is only one assumed nonreversible error with respect to passcode testimony.          

STATUTES: K.S.A. 2019 Supp. 60-455, -455(a), -455(b); K.S.A. 60-404, -455, -460)d), -460(d)(1), -460(d)(2), -460(i)(2)

criminal law—criminal procedure—evidence—jury instructions—sentencing
state v randle
sedgwick district court—affirmed
no. 119,720—may 1, 2020

FACTS: Randle and two others fired shots into apartment, killing a victim inside. Randle was convicted of first-degree murder and criminal discharge of firearm. He requested a dispositional/durational departure sentence, listing four mitigating factors; sentencing court denied the request, finding no substantial and compelling bases for departure. On appeal Randle claimed district court erred by: (1) refusing Randle’s request for jury instruction on unintentional but reckless second-degree murder as a lesser included offense of first-degree murder; (2) allowing hearsay statements into evidence; (3) admitting gruesome and unnecessary photographs and crime scene video into evidence; and (4) refusing to grant Randle’s motion for a departure sentence.

ISSUES: (1) Jury instruction—lesser included offense; (2) alleged hearsay evidence; (3) photographic and video evidence; (4) sentencing—mitigating factors

HELD: Misstatement in State v. Fisher, 304 Kan. 242 (2016), for analyzing jury instruction claims is identified and disapproved. Under Kansas caselaw, when a defendant requests a lesser included offense instruction, an appellate court reviews the evidence in the light most favorable to the defendant. Randle’s requested instruction was legally appropriate, but even assuming the instruction was factually appropriate, the error was harmless. Overwhelming evidence supports the first-degree premeditated murder conviction. And jury, provided with choice between first-degree premeditated murder and second-degree intentional murder, convicted Randle of the more severe crime that required a premeditation finding.

            District court did not err by admitting the two out-of-court statements. Alleged hearsay statements are examined, finding one was not hearsay. The other was classic hearsay, but allowed because the statement was made by a person present at trial and available for cross-examination, K.S.A. 2019 Supp. 60-460(a).

            No error in admitting eight of the 128 autopsy photos, selected to explain the nature and extent of fatal injuries, their location on the body, and coroner’s opinions based on injuries depicted. No error in admitting the six-minute crime scene video. Similar argument, that a crime scene video was irrelevant, cumulative, and more prejudicial than probative, was rejected in State v. McCaslin, 291 Kan. 697 (2011). No error in admitting two photographs of Randle while in custody, in street clothes, and without handcuffs or other restraints. Randle did not challenge relevancy, and this evidence was not unduly prejudicial.

            Randle’s reliance on previous cases holding his listed mitigating factors to be substantial and compelling reasons to support a departure sentence is rejected. Mitigating factors that may justify departure in one case may not justify a departure in another case.

STATUTES: K.S.A. 2019 Supp. 21-6620,: -6815(a), 22-3601(b), 60-459(a), -460, -460(a), -460(i)(2); K.S.A. 60-404, -2101(b)

 

Kansas Court of Appeals

Civil

SEXUALLY VIOLENT PREDATOR
IN RE CARE AND TREATMENT OF RITCHIE
BARTON DISTRICT COURT—AFFIRMED
NO. 121,627—MAY 1, 2020

FACTS: Ritchie was civilly committed to the Larned State Hospital under the Kansas Sexually Violent Predator Act. By April 2017, Ritchie earned the right to transitional release. He remained in the transitional release program until February 2019, which he was removed from the program and returned to Larned State Hospital. The removal was prompted by concerns about Ritchie's behavior and staff's belief that he was a danger to the general public; Ritchie violated the rules of transitional release in many ways, including several occasions where he contacted his victims. The State scheduled Ritchie's probable cause hearing but had to delay it because of scheduling conflicts for counsel and witnesses. Ritchie moved to dismiss the motion to revoke transitional release, arguing that the two-day timeframe for the probable cause hearing was jurisdictional.

ISSUES: (1) Is the statutory requirement that a hearing be held within two working days jurisdictional; (2) whether Ritchie was entitled to return to transitional release

HELD: As with most time standards of the KSVPA, the "two working days" requirement of K.S.A. 59-29a08(k) is directory, not mandatory. Any delay beyond the two days did not violate Ritchie's constitutional rights. He was still heard in a meaningful time and manner. There was sufficient evidence that Ritchie violated the terms of his conditional release placement, justifying his return to confinement at Larned.

STATUTE: K.S.A. 2019 Supp. 59-29a01, -29a01(b), -29a08(j), -29a08(k), -29a10

Tags:  Constitutional law  criminal law  criminal procedure  due process  evidence  Fifth Amendment  jury instructions  motions  sentencing 

Share |
PermalinkComments (0)
 

April 17, 2020 Digests

Posted By Administration, Monday, April 20, 2020

Kansas Supreme Court

criminal

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

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

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

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

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

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

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

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

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

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

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

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

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

ISSUE: Intellectual disability

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

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

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

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

ISSUE: Withdrawal of plea—plea agreement  

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

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

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

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

ISSUE: Waiver of right to jury trial

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

STATUTES: None

CRIMINAL LAW—CRIMINAL PROCEDURE—EVIDENCE—JURY INSTRUCTIONS

STATE V. UK

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

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

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

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

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

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

 

Kansas Court of Appeals

Civil

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

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

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

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

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

Tags:  acquiescence  Appeals  child support  Constitutional law  contracts  criminal law  criminal procedure  evidence  jurisdiction  jury instructions  sentences  statutes 

Share |
PermalinkComments (0)
 

April 10, 2020 Digests

Posted By Administration, Monday, April 13, 2020

Kansas Supreme Court

Civil

EMERGENCY PROCEDURES—QUO WARRANTO
KELLY V. LEGISLATIVE COORDINATING COUNCIL
ORIGINAL ACTION—QUO WARRANTO GRANTED IN PART
NO. 122,765—APRIL 11, 2020

FACTS: Because of the global pandemic caused by the novel coronavirus, Governor Kelly issued an emergency proclamation and follow-up executive orders. Under statute, the state of disaster emergency could not last longer than 15 days unless ratified by a concurrent resolution of the Legislature. Within that 15-day window, the legislature adopted House Concurrent Resolution 5025, extending the Governor's declaration to May 1, 2020. Governor Kelly used her emergency powers to issue Executive Order 20-18 which temporarily prohibited "mass gatherings", defined as any event that would bring together more than 10 people in an enclosed space. Importantly, Executive Order 20-18 removed religious gatherings from a list of exempted activities. Acting under HCR 5025, the Legislative Coordinating Council convened, voted, and revoked Executive Order 20-18. Governor Kelly filed this original action in quo warranto, and expedited proceedings were allowed given the unusual circumstances.

ISSUE: (1) Authority of the LCC

HELD: Quo warranto is an appropriate procedure for questioning the LCC's authority to revoke Executive Order 20-18. The House of Representatives and the Senate are not appropriate parties to the action and are dismissed. But the governor has standing to pursue this action. HCR 5025 establishes a conditions precedent which must be met before the LCC can act if the Legislature is not in session, including input from the State Finance Council. The LCC cannot act until the State Finance Council acts. K.S.A. 46-1202 is a general statute which creates the LCC and gives it some authority. In this instance, that statute must give way to the more specific statute, which governs the revocation of executive orders during an emergency.

CONCURRENCE: (Biles, J.) While agreeing with both the outcome and rationale, Justice Biles questions whether HCR 5025 can confer oversight powers on the LCC at all.

CONCURRENCE: (Stegall, J.) The majority reached the right outcome using the right rationale. There are lingering issues with the Kansas Emergency Management Act relating to separation of powers. The plain language of HCR 5025 may produce absurd results, but the court has no authority to rewrite the resolution.

STATUTES: K.S.A. 2019 Supp. 48-925 -925(b); K.S.A. 46-1202, 48-924, -924(b), 60-1203

criminal 

criminal procedure—sentences—statutes
state v. coleman
saline district court—reversed and remanded 
court of appeals—affirmed
no. 118,673—april 10, 2020

FACTS: In 2013, 2014, and 2015 cases, Coleman granted downward dispositional departure sentences of probation with underlying prison terms. In November 2017 revocation hearing, district court ruled that because probation had been granted as the result of dispositional departures it had authority under K.S.A. 2017 Supp. 22-3716(c)(9)(B), effective July 1, 2017, to revoke probation and impose the underlying sentences without first imposing intermediate sanctions. Coleman appealed. In unpublished opinion, Court of Appeals reversed and remanded, holding the trial court erred in applying K.S.A. 2017 Supp. 22-3716(c)(9)(B) retrospectively. State’s petition for review granted.

ISSUE: Probation revocation

HELD: Court of Appeals judgment is affirmed. The K.S.A. 2017 Supp. 22-3716(c)(9)(B) exception, which allows a trial court to revoke a probationer’s probation without first imposing graduated sanctions if the probation was granted as a result of a dispositional departure, applies only to probationers whose offenses or crimes of conviction occurred on or after that statute’s effective date.  District court judgment is reversed and case remanded with directions.

STATUTES: K.S.A. 2017 Supp. 22-3716, -3716(c)(9)(B); K.S.A. 2014 Supp. 22-3716(c)(11); K.S.A. 20-3018(b), 60-2101(b)

 

Kansas Court of Appeals

Civil

CONTRACTS—EMPLOYMENT
HEFNER V DEUTSCHER
SHAWNEE DISTRICT COURT—REVERSED AND REMANDED
NO. 119,201—APRIL 10, 2020

FACTS: Hefner, Deutscher, and Rottinghaus worked together in their optometry practice as a corporation. As an employee of the corporation, Hefner signed a noncompete agreement barring him from employment within a set geographic area for three years following his employment with the corporation. The contract specified that damages would be awarded for any breach or "threatened breach" of the contract. Over time, Hefner and Deutscher's relationship soured, and both parties proposed strategies that would allow Hefner to leave the corporation. Before the details could be finalized, Hefner located new office space and registered a new tradename with the Kansas Optometry Board. Hefner ultimately resigned instead of finalizing his exit agreement. And instead of practicing, Hefner decided he would rather teach optometry. It was thought that Hefner would work for the corporation for an additional six months, but Deutscher fired him for violating the noncompete clause. Hefner filed suit for breach of contract and wrongful termination. All parties filed competing motions for summary judgment. The district court granted Hefner's motion for partial summary judgment on his breach of contract claim and granted the corporation's motion for summary judgment on Hefner's wrongful termination claim. After a bench trial on the remaining breach of fiduciary duty claim, the district court found that Deutscher and Rottinghaus breached their fiduciary duty to Hefner because their motives for terminating Hefner were not made in fairness and good faith to the corporation. The district court awarded Hefner in excess of $1 million in damages. The corporation, Deutscher, and Rottinghaus appealed.

ISSUE: (1) Hefner's breach of contract claim

HELD: The use of the phrase "threatened breach" in Hefner's employment contract did not mean the same thing as an anticipatory breach. It had a broader meaning under the plain language of the employment contract, and encompassed actions which would lead a reasonable person to believe that a breach is imminent and likely to happen. The district court incorrectly defined "threatened breach", and this error resulted in the district court wrongly granting Hefner's motion for summary judgment. This case must be remanded to the district court for further action.

STATUTES: No statutes cited.

RATEMAKING—UTILITIES
HANSON V. KCC
STEVENS DISTRICT COURT—AFFIRMED IN PART,
REVERSED IN PART, REMANDED TO KCC
NO. 119,834—APRIL 10, 2020

FACTS: TKO Gas, LLC provides limited natural gas service in Kansas, operating as a middleman to resell gas to customers. TKO assumed contract rights from a previous provider and never went through a formal rate-setting process. Over time, some customers complained that TKO improperly calculated the heat content of the gas it was selling, resulting in a consistent 9.5% overcharge. Staff found that TKO changed the pressure at which is delivered natural gas. TKO acknowledged that this happened, but claimed it was industry standard practice to do so, and that the practice was in its contracts which were approved by the KCC. The KCC held a hearing and determined that none of the customers were entitled to relief. Even though TKO admitted to all of the customers' claims, the KCC ultimately determined that the rates charged by TKO were still reasonable, resulting in no harm to the customers. The district court reversed this finding, ruling that the KCC improperly focused on rate making while ignoring TKO's improper billing practices. The district court ordered the KCC to calculate the exact amount of overbilling and require TKO to pay refunds. TKO appealed.

ISSUE: (1) KCC's ability to address overpayment

HELD: The KCC is not limited to ratemaking or rate-reviewing functions. It has broad authority to determine whether any action is unreasonable or unfair. The KCC erred by only focusing on whether TKO's rates were reasonable, ignoring TKO's flawed billing methodology. TKO's practice of changing the pressure at which gas is distributed resulted in an overcharge and was neither honest nor fair. The KCC erred by not addressing it. But the district court erred by directing the KCC on how to fix this error. The KCC has total statutory control over crafting an appropriate remedy, and the case is remanded to the KCC.

STATUTE: K.S.A. 66-1,201, -1,205, -1,205(a), -1,206, -1,206(a), -1,207, 77-621(a)(1), -621(c)(4)

OIL AND GAS—TAX
IN RE TAX APPEAL OF RIVER ROCK ENERGY COMPANY
BOARD OF TAX APPEALS—AFFIRMED IN PART, REVERSED IN PART, REMANDED
NO. 120,387—APRIL 10, 2020

FACTS: In 2016, River Rock acquired producing gas wells, leases, and other assets in Kansas. After taking possession, River Rock learned that the counties in which the wells were located assigned a total appraised value of over $13 million. River Rock appealed while paying its taxes under protest. But River Rock only paid filing fees for a small percentage of its wells. River Rock sought an abatement of the filing fees it did pay. The Property Valuation Division of the Kansas Department of Revenue intervened to defend its valuation methods. After a hearing based on written testimony, BOTA upheld the counties' valuations. River Rock appealed.

ISSUES: (1) Valuing wells based on minimum lease values; (2) minimum leave values creating arbitrary and erroneous valuations; (3) whether BOTA properly considered the evidence; (4) whether BOTA erred when valuing equipment in the wells; (5) filing fee abatements

HELD: Personal property must be appraised at its fair market value. The Kansas Oil and Gas Appraisal Guide does not comply with this statutory directive because it prevents the gross working interest in any producing well from ever dropping to zero. The use of a minimum lease value on limited-production wells creates an assessed value higher than the actual gross working interest value, arbitrarily substituting the higher of two possible values. The Guide does not allow for the proper reconciliation of market values when the working interest value differs greatly from the minimum leave value. When an appraiser uses the minimum lease value, deductions for actual costs and other expense allowances are no longer used. This prevents sufficient consideration of these costs and does not lead to a fair market value of the property. Actual evidence shows that River Rock has wells with negative gross working interest, but the assigned minimum lease values do not reflect fair market value. BOTA did not ignore relevant evidence, rather overly simplified the evidence. River Rock cannot tie the value of its equipment to variable market conditions which ultimately affect the price of natural gas. BOTA properly valued River Rock's equipment with one exception: BOTA erred when valuing segments of underground poly flow lines. BOTA disregarded uncontroverted evidence that the lines could not be salvaged without destroying them. Filing fees are not allowed if they exceed the reasonable costs of administering the appeals. Neither BOTA nor River Rock properly calculated River Rock's filing fees, but the record on appeal does not contain enough information to determine how much abatement should have been granted to River Rock. If BOTA wants to deny River Rock's request for abatement, it must explain why.

STATUTE: K.S.A. 77-603(a), -613(e), -621(a)(1), -621(c), 79-329, -331(a), -501, -503a

GARNISHMENTS
STORMONT-VAIL HEALTHCARE V. SIEVERS
SHAWNEE DISTRICT COURT—AFFIRMED
NO. 121,109—APRIL 10, 2020

FACTS: Stormont-Vail received a consent judgment against Sievers for unpaid medical expenses. The amount of the debt is undisputed. Sievers refused to set up a payment plan and instead asked Stormont-Vail to garnish him. Stormont-Vail took him up on his offer and filed two requests for orders of garnishment: one from his employer and one to attach Sievers' other property held in bank accounts. Sievers objected to the garnishment order at his bank, arguing that the funds in his bank account were exempt from attachment because the funds met the definition of "earnings." The district court disagreed with Sievers, finding that once Sievers' paycheck was deposited into a bank account the money became garnishable. Sievers appeals.

ISSUE: (1) Whether wages deposited into a bank account can be garnished

HELD: Kansas statutes create limits on how much of a debtor's earnings can be attached by a nonwage garnishment order. Only an employer can act as the garnishee for a wage garnishment. The meaning of "earnings" is expressly tied to an employer-employee relationship, and once money paid as earnings is deposited into a bank account it loses its status as earnings. The money in Sievers' bank account was garnishable, even if the funds originated from his earnings.

DISSENT: (Standridge, J.) Wages paid by an employer are earnings. So wages electronically paid to Sievers by his employer via direct deposit into his bank account meet the statutory definition of earnings and are exempt from attachment through garnishment.

STATUTE: K.S.A. 2019 Supp. 60-2310(a)(1), 61-3504(a), -3504(b), -3505(a), -3506(g), -3507, -3507(a), -3508, -3509, -3510; K.S.A. 61-3502, -3505

criminal

constitutional law—criminal procedure—evidence—juries—jury instructions
state v. albano
riley district court—affirmed
no.120,767—april 10, 2020

FACTS: Albano convicted of distribution of a controlled substance within 1,000 feet of a school. On appeal she claimed: (1) district court erred by failing to give a limiting instruction concerning the admission of evidence of Albano’s prior drug convictions; (2) district court undermined jury’s power of nullification by instructing jury that it “must” follow the law and that it was jury’s “duty” to do so; and (3) sentencing court’s use of judicial findings of prior convictions to sentence Albano violated section 5 of Kansas Constitution Bill of Rights - the right of trial by jury.

ISSUES: (1) limiting instruction—prior crimes; (2) jury instructions—power of nullification; (3) sentencing—Kansas Constitution

HELD: State’s argument that Albano invited the limiting-instruction error is rejected. A defendant does not waive applicability of a limiting instruction simply by introducing K.S.A. 60-455 evidence because a limiting instruction is required regardless of which party introduced the evidence. Here, district court erred in failing to give a limiting instruction, but this failure was not clearly erroneous. Unclear how jury could have impermissibly relied on Albano’s prior convictions as general propensity evidence when it was undisputed she committed the acts in question, and jury’s acquittal on one of the three charges establishes that jury did not impermissibly rely on the prior convictions to establish guilt.

            District court did not err in giving legally correct instructions. State v. Boothby, 310 Kan. 619 (2019), determined that the same “must follow the law” language Albano challenged in one instruction did not interfere with jury’s power to nullify. The “duty” language challenged   in a second instruction is substantively identical—telling jury to follow the law.

            There is no authority for the proposition that section 5 provides greater protection than the federal jury trial right by requiring a jury to determine criminal history. And the section 5 jury trial right does not prohibit judicial findings of prior criminal history because there was no common law right to have a jury determine criminal history when the Kansas Constitution was adopted.    

STATUTES: K.S.A. 2019 Supp. 22-3414(3); K.S.A. 60-455

constitutional law—criminal procedure—evidence
state v. R.W.
douglas district court—affirmed
no. 120,854—April 10, 2020

FACTS: Juvenile R.W. was interrogated several hours at police facility after being picked up from high school by two police officers. State later charged R.W. with multiple criminal counts including rape and aggravated battery, and district court certified R.W. for trial as an adult. R.W. filed motion to suppress statements he made during interrogation. District court granted the motion, finding R.W.’s statements were not the product of a free and independent will, and citing the officers’ promises, benefits, and reassurances as resulting in R.W.’s will being overborne. State filed interlocutory appeal.

ISSUE: Fifth Amendment—juveniles

HELD: District court’s suppression order is affirmed. Totality of circumstances in this case suggest that R.W.’s confession was not the product of a free and independent will. Standard of care to be exercised in assessing the validity of a juvenile’s statements during interrogation without counsel present is discussed. Here, substantial competent evidence supported district court’s factual findings, and district court applied the correct legal analysis. Agreement stated with specific findings and considerations in district court’s comprehensive memorandum decision. Officers may have had good intentions, but statements made to juveniles that are likely to mislead them regarding the nature and legal consequences of an interrogation have the potential to render a confession involuntary.

STATUTES: K.S.A. 2019 Supp. 22-3603, 60-460(f); K.S.A. 60-460(f)

Tags:  Constitutional law  contracts  criminal procedure  emergency procedures  employment  evidence  garnishments  juries  jury instructions  oil and gas  quo warranto  ratemaking  sentences  statutes  tax  utilities 

Share |
PermalinkComments (0)
 

March 27, 2020 Digests

Posted By Administration, Tuesday, March 31, 2020

Kansas Supreme Court

criminal

appeals—constitutional law—criminal law—criminal procedure—
evidence—juries—jury instruction—statutes
state v. Gonzalez
wyandotte district court—affirmed
no. 119,492—march 27, 2020

FACTS: Passenger (Espinoza) in car driven by Gonzalez shot and killed a man outside a bar. Gonzalez convicted of felony murder, attempted aggravated robbery, and conspiracy to commit aggravated robbery. During trial, district court refused to compel testimony of Espinoza who had already pleaded guilty and been sentenced for his participation. On appeal Gonzalez argued: (1) insufficient evidence supported the convictions; (2) the attempt and conspiracy convictions were multiplicitous; (3) district court’s aiding and abetting jury instruction erroneously lowered the State’s burden of proof on specific intent crimes; (4) district court erroneously permitted Espinoza to invoke Fifth Amendment privilege; (5) State’s peremptory strikes during jury selection constituted purposeful racial discrimination to exclude prospective Hispanic jurors; and (6) cumulative error denied him a fair trial.

ISSUES: (1) Sufficiency of the evidence; (2) multiplicitous offenses; (3) jury instruction—aiding and abetting; (4) Fifth Amendment—failure to compel testimony, (5) Batson challenge, (6) cumulative error 

HELD: Evidence in this case established the pair’s intent to rob the victim and an agreement to commit aggravated robbery. Evidence included detective’s testimony, without objection, that provided a concrete context to ambiguous text messages.

            District court’s instruction accurately reflected Kansas’ aiding and abetting statute, but did not accurately state applicable caselaw limiting the statute’s use when defendants are charged with aiding and abetting specific intent crimes. In this case the legal error was harmless under the clear error standard.

             Multiplicity claim, raised for first time on appeal, is considered. Gonzalez’ conspiracy and the aiding and abetting attempted aggravated robbery convictions are not multiplicitous - each requires proof of an element not required by the other.

            Gonzalez’ failure to make an adequate proffer of what Espinoza would have testified about provides no basis for appellate review of whether trial court abused its discretion in not compelling the testimony.

            Jury selection in this case is examined. No abuse of district court’s discretion in finding Gonzalez failed to show purposeful discrimination given the State’s race-neutral reasons for its peremptory strikes.

            The single error found in this case does not support application of the cumulative error doctrine.

STATUTES: K.S.A. 2018 Supp. 21-5210, -5210(a), -5301, -5301(a), -5302(a), -5402(a)(2), -5402(c)(1)(D), -5420, 22-3414(3), -3601(b)(3), -3601(b)(4); K.S.A. 60-405

 

Kansas Court of Appeals

Civil

DIVORCE—PROPERTY DIVISION
IN RE MARRIAGE OF PERALES
SALINE DISTRICT COURT—AFFIRMED
NO. 120,306—MARCH 27, 2020

FACTS: Gary Perales is serving a life sentence in prison. At the time of his divorce from Cynthia Perales, Cynthia was supporting herself and the couple's four children. Gary did not complete a property affidavit, but he has been imprisoned since 2012. The district court held a hearing to consider separation of the couple's property. At the hearing, Cynthia provided a quitclaim deed showing that Gary had deeded the house to her and testified that she needed Gary's truck to transport herself and their children. Cynthia also testified that she made payments on both the house and truck after Gary's imprisonment. Gary disputed Cynthia's testimony about the quitclaim deed and claimed that he sold both the house and his truck to his sister. After weighing the evidence, the district court ruled that it would be most equitable to award Cynthia both the house and the truck. Gary appealed.

ISSUES: (1) Award of the house; (2) requirement that Cynthia compensate Gary

HELD: There is no evidence that the district court failed to consider the home as marital property subject to division. To the contrary, the district court appropriately considered the factors established by K.S.A. 2019 Supp. 23-2802(c). A division of marital property need only be equitable, not equal. There is a statutory requirement that property division may be accomplished by the payment of a "just and proper sum" to one party. In some cases, equity may allow that sum to be zero. The extraordinary facts of this case mean the district court's award of assets to Cynthia was equitable.

STATUTE: K.S.A. 2019 Supp. 23-2801, -2802(a)(1), -2802(a)(2), -2802(c)

criminal

criminal law—statutes
state v. lucas
sedgwick district court—affirmed
no. 120,510—March 27, 2020

FACTS: Lucas convicted of being a felon in criminal possession of a “firearm or knife,” K.S.A. 2017 Supp. 216304(c)(2). The weapon in this case was a folding knife 9 inches long when unfolded, 5.5. inches long when closed, with a 4.5 in. blade. Lucas argued the folding knife was not a “knife” as defined by K.S.A. 2017 Supp. 21-6304(c)(1).

ISSUE: Statutory definition of “knife”

HELD: District court did not err in concluding the folding knife in this case is a dangerous or deadly cutting instrument of like character to those listed in K.S.A. 2017 Supp. 21-6304(c)(1).

STATUTE: K.S.A. 2017 Supp. 21-6304, -6304(a)(2), -6304(c)(1), -6304(c)(2)

appeals—criminal procedure—discovery—evidence—jurisdiction
state v. mundo-parra
sedgwick district court—affirmed
no. 118,875—march 27, 2020

FACTS: Mundo-Parra convicted in 2005 on no contest pleas to kidnapping and rape. In 2017 while still serving his sentence, he asked prosecutors to provide State’s investigatory files in the case, including anything that might show his innocence. District court denied the request. Mundo-Parra appealed. State argued the appeal was not timely filed within 30 days of district court’s ruling.

ISSUES: (1) Appellate jurisdiction; (2) district court’s jurisdiction; (3) postconviction discovery

HELD: State’s jurisdictional hurdle is rejected. District court entered its order electronically, with no record in district court’s file that court clerk mailed a copy of the order to Mundo-Parra. After that order had been entered Mundo-Parra made several requests for a court ruling on his discovery request, and filed his notice of appeal well within 30 days of district court’s denial of Mondo-Parra’s last request for a ruling.

            District court had jurisdiction to consider Mundo-Parra’s request for postconviction discovery, even though there was no pending motion in the criminal case and no pending civil action challenging his confinement. There is no Kansas statute governing postconviction discovery, and no statutory limit on district court’s general jurisdiction over it.

            No provision in Kansas Code of Criminal Procedure covers postconviction discovery. Kansas cases are reviewed and guidance sought from rules and statutes in federal and state jurisdictions. Panel concludes postconviction discovery sought by the defendant should be allowed when the defendant shows it is necessary to protect substantial rights. To get discovery, the defendant must make a good-cause showing by identifying the specific subject matter for discovery and explaining why discovery about those matters is necessary to protect substantial rights. Mundo-Parra made no such showing in this case. Instead, his request is a classic fishing expedition with no stated connection to any claim that could lead to setting aside either his no-contest pleas or his convictions.

STATUTES: K.S.A. 2019 Supp. 21-2512, 22-3210(d)(2), -3212, -3213, 60-1507, -2103(a); K.S.A. 20-301

 

Tags:  appeals  constitutional law  criminal law  criminal procedure  discovery  divorce  evidence  juries  jurisdiction  jury instructions  property division  Saline District Court  Sedgwick District Court  statutes  Wyandotte District Court 

Share |
PermalinkComments (0)
 

March 13, 2020 Digests

Posted By Administration, Monday, March 16, 2020
Updated: Monday, March 16, 2020

Kansas Supreme Court

criminal

criminal procedure—evidence—jury instructions—statutes—venue
state v. galloway
cherokee district court—affirmed in part, vacated in part, remanded
no. 117,941—march 13, 2020

FACTS: Galloway sentenced to hard 50 life sentence for conviction on charges of: premeditated first-degree murder, arson, and interference with law enforcement. Prior to trial she moved for change of venue, arguing she could not receive a fair trial due to extensive pretrial publicity and the relatively small pool of jurors. She also filed motion to suppress statements she made during interrogation, arguing her lack of sleep, low blood sugar, hunger, and pregnancy accompanied by gestational diabetes deprived her of the mental capacity to make voluntary statements. District court denied both motions. On appeal, she claimed district court erred by: (1) denying motion for change of venue without addressing and applying all nine caselaw factors set forth in State v. Longeria, 301 Kan. 489 (2015), for assessing prejudice under the venue statute; (2) denying motion to suppress; (3) discussing with counsel and Galloway the answer to a jury question in a closed rather than open court; (4) instructing jury it should find her guilty if the facts supported such a finding; and (5) announcing it would not consider the absence of a criminal history as a mitigating factor because Legislature had rejected that as grounds for mitigation.

ISSUES: (1) Change of venue; (2) suppression of interrogation; (3) jury question; (4) jury’s duty instruction; (5) mitigating sentencing factors

HELD: District court’s omission of findings with regard to some of the caselaw factors was not error. Galloway did not argue all factors to the district court, or for their application. Nor did she make a sufficient showing of prejudice for a change of venue.

            Substantial competent evidence supports district court’s finding that Galloway’s statements were voluntary and made without coercion, and Galloway makes no showing warranting reversal of the denial of her motion to suppress.

            No error found on Galloway’s unsubstantiated speculation that discussion of the jury question was not conducted in open court.

            Galloway’s claim of impermissible interference with jury’s power of nullification is rejected. Same instruction was upheld in State v. Patterson, 311 Kan. __ (2020).

            District court’s statement incorrectly stated the law, and his open refusal to consider a mitigating factor listed in K.S.A. 2019 Supp. 21-6625(a) was not harmless error. Sentence vacated and case remanded for resentencing.           

STATUTES: K.S.A. 2019 Supp. 21-6625(a); 22-3420(d); 60-460(f); K.S.A. 22-2616, -2616(1)

criminal law—evidence—Fifth Amendment—jury instructions
State v. parker
wyandotte district court—affirmed
no. 118,349—march 13, 2020

FACTS: Parker convicted of premeditated first-degree murder. On appeal, he claimed the district court should have granted motion to suppress self-incriminating statements made during interrogation because investigators failed to take sufficient steps to ensure that Parker understood his Miranda rights. He also claimed district court erred by denying Parker’s request for an instruction on voluntary manslaughter committed upon a sudden quarrel or in the heat of passion.

ISSUES: (1) Motion to suppress; (2) jury instruction

HELD: Substantial competent evidence supported district court’s factual findings which showed Parker’s voluntary waiver of Miranda rights. Better practice for interrogators to read Miranda summary of rights out loud and make follow-up inquiries about whether the person being questioned understands those rights, but that protocol was not possible in this case because Parker refused to allow detectives to explain his rights out loud. Overall tenor of the interrogation showed that Parker knew what crime he had committed and how he had done it; understood the police were trying to obtain incriminating statements from him; played a cat-and-mouse game with interrogators; and understood his rights and how the interrogation process worked. District court did not err when it admitted the interrogation statements.

            In line with State v. Campbell, 308 Kan. 763 (2019), and State v. Wade, 295 Kan. 916 (20120, a voluntary manslaughter instruction would not have been factually appropriate in this case with so little evidence of heat of passion at the time of the shooting and so much evidence of calculated decision-making.

STATUTE: K.S.A. 2018 Supp. 21-5404(a)

constitutional law—criminal procedure—evidence
state v. sesmas
sedgwick district court—affirmed
no. 119,862—march 13, 2020

FACTS: Sesmas convicted of first-degree murder, kidnapping, and aggravated interference with parental custody for the killing of her friend and the kidnapping of her friend’s newborn daughter. A police certified interpreter assisted Sesmas during her interrogation. On the Miranda form Sesmas indicated “no” to talking to the police, but after asking questions about her children and husband, marked “yes” on a second Miranda form and confessed to the crimes charged. At a pretrial hearing under Jackson v. Denno, 378 U.S 368 (1964), district court found Sesmas voluntarily waived her Miranda rights and concluded the confession was voluntary, notwithstanding court’s concern with the interpreter’s dual role and statement that “it could take quite a while for a lawyer to arrive from Wichita.”: On appeal Sesma argued her post-arrest confession was involuntary because law enforcement was unfair in conducting the interview, and Sesmas was handicapped by her lack of English fluency,: She also claimed the State violated her due process rights at trial by mentioning her invocation on the first Miranda form of her right to remain silent.

ISSUES: (1) Voluntary confession; (2) reference to invocation of rights

HELD: Under totality of circumstances, Sesmas voluntarily confessed to detectives, and her incriminating statements were admissible at trial. Use of an interpreter who was not also an interrogator would have been better practice, but in this case the interpreter’s dual role and statement was not a factor in forcing a confession.

            The state is not permitted to impeach a defendant’s version of events at trial with the defendant’s post-Miranda silence. The fleeting violation of Doyle v. Ohio, 426 U.S. 610 (1976), this case was harmless error because Sesmas’ credibility was already throughly impeached by State’s evidence.

STATUTES: None

Kansas Court of Appeals

Civil

DRIVERS LICENSE—SEARCH AND SEIZURE
STRICKERT V. KANSAS DEPARTMENT OF REVENUE
FINNEY DISTRICT COURT—AFFIRMED
NO. 120,544—MARCH 13, 2020

FACTS: Officer Meinzer stopped Strickert after he left a bar late at night. While obtaining Strickert's personal information, Officer Meinzer noticed the smell of alcohol and that Strickert's eyes were bloodshot and his speech slow. After completing field sobriety tests, Strickert refused to take a preliminary breath test. Based on clues of impairment and Strickert's refusal, Officer Meinzer arrested Strickert. He later received his notice of driver's license suspension and timely requested an administrative hearing. Both the hearing officer and the district court affirmed the suspension of Strickert's driver's license, and he appealed.

ISSUES: (1) Standard of review; (2) reasonable suspicion; (3) reasonable grounds

HELD: The appropriate standard is to review the district court's order looking for substantial competent evidence that the findings were legally correct. It is not appropriate to use the "negative finding" standard of review. Strickert technically violated a traffic statute by not activating his turn signal 100 feet before turning, and the Supreme Court has already held that such failure provides reasonable suspicion to initiate a traffic stop. Strickert's bloodshot eyes and the smell of alcohol warranted an extension of the stop. Substantial competent evidence supports the district court's findings that reasonable grounds existed for Officer Meinzer to arrest Strickert.

STATUTES: K.S.A. 2019 Supp. 8-259(a), -1002(a)(1); K.S.A. 8-1548, 22-2402(1), 77-621(c)

Tags:  Constitutional law  criminal law  criminal procedure  drivers license  evidence  fifth amendment  jury instructions  search and seizure  statutes  venue 

Share |
PermalinkComments (0)
 

March 6, 2020 Digests

Posted By Administration, Monday, March 9, 2020

Kansas Supreme Court

Attorney Discipline

TWO-YEAR SUSPENSION
IN RE DANIEL VINCENT SAVILLE
NO. 121,050—MARCH 6, 2020

FACTS: Saville stipulated that he violated KRPC 1.7(a)(2) (conflict of interest). A hearing panel found that Saville also violated KRPC 1.8(e) (providing financial assistance to client); 3.4(c) (fairness to opposing party and counsel); and 8.4(d) (engaging in conduct prejudicial to the administration of justice). Saville engaged in a sexual relationship with a client for over eight years; during the relationship Saville took nude photographs and videos of the client. He also provided her with financial assistance. When the client was charged with a felony, Saville wrote a fee agreement which contemplated that he would represent her for free as long as she did not get back together with a boyfriend.

HEARING PANEL: The hearing panel found numerous conflicts of interest in Saville's representation of his client. He had a prior disciplinary history after being convicted of possession of drug paraphernalia, and there was a lengthy, on-going pattern of misconduct. The panel did acknowledge mitigating factors, including Saville's history of drug use and emotional problems, and his cooperation with the disciplinary process. The disciplinary administrator's office suggested discipline of a one-year suspension. Saville requested that he be allowed to continue to practice, subject to the terms of his proposed probation plan. The hearing panel believed that probation was not appropriate for the rule violations in this case. Ultimately, the hearing panel recommended a six-month term of suspension with the requirement that Saville undergo a reinstatement hearing before being allowed to practice again.

HELD: Because it was not properly preserved, the Court makes no finding as to whether an attorney's payment of bail for a client is a per se violation of Rule 1.8(e). In this case, the undisputed facts show that Saville violated Rule 1.8(e). There was also sufficient evidence that Saville violated Rules 3.4(c) and 8.4(d) by speaking with a sequestered witness. After considering the recommended discipline and noting that Saville refused to accept responsibility of some of the disciplinary counts, a majority of the Court imposed discipline of a two-year suspension from the practice of law. Saville must undergo a reinstatement hearing before returning to practice. A minority of the Court would have imposed the one-year suspension requested by the disciplinary administrator's office.

criminal

appeals—constitutional law—criminal law—sentences—statutes
state v. carter
sedgwick district court—affirmed;
court of appeals—reversed
no. 116,223—march 6, 2020

FACTS:: Carter robbed a store using a Taser. Jury convicted her of aggravated robbery. At sentencing, district court found Carter had used a dangerous weapon to commit the crime, and marked the box on the journal entry that a deadly weapon had been used to commit a person felony. Sentence included registration under the Kansas Offender Registration Act (KORA). Carter appealed her conviction and the registration requirement. Court of Appeals affirmed the conviction but reversed the registration requirement, finding Carter did not use a deadly weapon during the robbery. 55 Kan. App. 2d 511 (2018). State’s petition granted for review of the panel’s registration requirement ruling.

ISSUES: (1) Appellate jurisdiction; (2) “deadly weapon”—K.S.A. 2019 Supp. 22-4902(e)(2)

HELD: Court has appellate jurisdiction over the registration issue under K.S.A. 2019 Supp. 22-3602(a).

            Phrase “deadly weapon” in K.S.A. 2019 Supp. 22-4902(e)(2) is interpreted. “Deadly weapon” when used as element of a crime is distinguished from use of that phrase in a nonpunitive civil regulatory scheme. Under plain meaning of clear statutory language, substantial competent evidence supported district court’s finding that Carter used a deadly weapon in committing the robbery. No departure from majority of Court’s consistent holdings that a district judge’s deadly weapon finding under K.S.A. 2019 Supp. 22-4902(e)(2) does not constitute impermissible judicial fact-finding prohibited by Apprendi.

DISSENT (Rosen, J.)(joined by Beier, J.): Would hold the district court erred in ordering Carter to register under KORA. He first disagrees with majority’s underlying premise that KORA is not a sentencing statute that increases the punishment for certain convictions, and believes State v. Petersen-Beard, 304 Kan. 192 (2016), was wrongly decided for reasons stated in J. Johnson’s dissent in Doe v. Thompson, 304 Kan. 291 (2016). Second, analyzing KORA as sentencing statute, district court’s sentencing pronouncement of “dangerous” weapon did not satisfy KORA, and journal entry box for “deadly” weapon had no effect. Third, a deadly weapon finding at sentencing would have violated Apprendi. And fourth, regardless of whether KORA is punitive or not, State did not produce evidence showing Tasers to be deadly. Majority’s reliance instead on “weight of growing common knowledge of Tasers’ danger” is criticized.

STATUTES:: K.S.A. 2019 Supp. 22-3602(a), -4902(e)(2); K.S.A. 2011 Supp. 21-5420, -5420(b)(1)

 

Kansas Court of Appeals

criminal

appeals—criminal law—criminal procedure—
evidence—jury instructions—statutes
state v. hayes
sedgwick district court—affirmed
no. 120,417—march 6, 2020

FACTS: While dark, Hayes used phone to film neighbor A.W. through her window in a state of undress. Jury convicted Hayes of breach of privacy. On appeal he claimed:: (1) insufficient evidence supported the conviction, arguing A.W. did not have a reasonable expectation of privacy because her blinds were not closed, and the phone he used to record A.W. was not concealed; (2) district court erred in admitting evidence of a receipt that Hayes had purchased a spywatch; (3) because he admitted he recorded A.W., identity was not a material fact thus district court erred in admitting testimony of other neighbors that Hayes had been looking in their windows; (4) verdict form erroneously placed “guilty” before “not guilty; (5) district court erred by instructing jury that you “should” find the defendant guilty if you have no reasonable doubt; and (6) cumulative error denied him a fair trial.

ISSUES: (1) Breach of privacy; (2) evidence—watch receipt; (3) evidence - prior bad acts; (4) verdict form; (5) jury nullification; (6) cumulative error

HELD:: Kansas courts have not addressed the phrase “reasonable expectation of privacy” as used in K.S.A. 2019 Supp. 21-6101(a)(6). Fourth Amendment is distinguished from right to privacy. Fact-specific two pronged test is applied, finding sufficient evidence for jury to conclude that A.W. had a reasonable expectation of privacy in her bedroom even though the window blinds were up. Also, Hayes was concealed when he recorded A.W., thus the phone he used was concealed as well. Statute does not require any additional concealment of the recording device.

            District court did not erroneously admit evidence that Hayes bought a recording device designed to be unobtrusive. Hayes failed to preserve this issue for appeal, but even if preserved, the purchase of a watch that secretly records people was relevant to whether Hayes secretly recorded A.W.: And even if issue had been properly preserved and even if receipt was not relevant, admission of the watch receipt was harmless.

            District court did not erroneously admit prior bad acts evidence. The evidence was admissible to show identity because at time of the rulings Hayes had not admitted that he was the one recording A.W.

            Following established Kansas Supreme Court holdings, district court did not err by placing “guilty” above “not guilty” on the verdict form.

            District court did not err in using PIK instruction to instruct jury that “[i]f you have no reasonable doubt…, you should find the defendant guilty.”:

            There can be no cumulative error in case with at most one error that was found to be harmless.

STATUTES: K.S.A. 2019 Supp. 21-5222(a), -6101, -6101(a)(6), 60-261, -455; K.S.A. 2014 Supp. 21-6101(a)(6); K.S.A. 2012 Supp. 21-6101(a)(3); K.S.A. 60-401(b), -404

Tags:  Appeals  constitutional law  criminal law  criminal procedure  evidence  jury instructions  sentences  statutes  suspension of license 

Share |
PermalinkComments (0)
 

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 

Share |
PermalinkComments (0)
 
Page 2 of 4
1  |  2  |  3  |  4