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January 30 and February 2, 2018 Digests

Posted By Administration, Monday, February 5, 2018

Kansas Supreme Court

Attorney Discipline

ORDER OF DISBARMENT
IN THE MATTER OF JEFFERY B. BITNER
NO. 25,188—JANUARY 30, 2018

FACTS: In a letter signed January 9, 2018, Jeffery B. Bitner voluntarily surrendered his license to practice law in Kansas. At the time of surrender, a complaint was pending which alleged multiple violations of the Kansas Rules of Professional Conduct.

HELD: The court found that the surrender of Bitner's license should be accepted and Bitner was disbarred.

criminal

constitutional law—criminal procedure—sentencing—statutues
state v. albright
kingman district court—affirmed
No. 116,408—february 2, 2018

FACTS: Albright was convicted in 1999 of first-degree murder, and a Hard 40 sentence was imposed. In 2002, Albright filed a 60-1507 motion alleging ineffective assistance of counsel. In a new trial ordered by Court of Appeals, jury again convicted Albright of first-degree murder, and a Hard 40 sentence was imposed in 2005. Conviction and sentence affirmed, finding no Apprendi violation in sentencing. State v. Albright, 283 Kan. 418 (2007). In 2016, Albright filed motion for resentencing, asserting his Hard 40 sentence was unconstitutional under Alleyne v. United States, 570 U.S. 99 (2013). District court viewed motion as a collateral attack under K.S.A. 50-1507(b) and denied the motion. Albright appealed, arguing his Hard 40 life sentence is unconstitutional under Alleyne because it is the result of judicial fact-finding.

ISSUE: Challenge to the sentence

HELD: Albright was entitled to no relief whether the district court correctly construed the pleading as a collateral attack, or whether it should have been characterized as a motion to correct an illegal sentence. Albright cannot use K.S.A. 22-3504 to challenge the constitutionality of his sentence, and there is no showing of manifest injustice to consider an untimely filed 60-1507 motion. Additionally, Alleyne cannot be applied retroactively to cases that were final when Alleyne was decided.

STATUTES: K.S.A. 2017 Supp. 22-3504; K.S.A. 22-3504, 60-1507, -1507(b), -1507(f)(2)

criminal

sentencing—statutes
state v. brune
johnson district court—affirmed
No. 116,720—February 2, 2018

FACTS: Brune pled guilty to two counts of first-degree felony murder.  Consecutive Hard 25 sentences imposed. On appeal Brune claimed the district court erred in refusing to run the sentences concurrent to each other. Brune argued consecutive sentences were overly harsh given his acceptance of responsibility, expression of remorse, willingness to enroll in rehabilitative programs, and negative effects of sentence on his family relationships.

ISSUE: Abuse of discretion in sentencing

HELD: Kansas Sentencing Guidelines Act does not preclude review of sentences classified as off-grid crimes, but under facts of this case the district court did not abuse its discretion by ordering consecutive service of Brune’s hard 25 sentences. 

STATUTE: K.S.A. 2016 Supp. 22-3601(b)(3)

Tags:  Attorney Discipline  Johnson  Kingman 

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January 12, 2018 Digests

Posted By Administration, Tuesday, January 16, 2018

Kansas Supreme Court

Attorney Discipline

ONE YEAR SUSPENSION
IN THE MATTER OF DANIEL HART PHILLIPS
NO. 118,210—JANUARY 12, 2018

FACTS: A hearing panel determined that Phillips violated KRPC 8.4(g) (engaging in conduct adversely reflecting on a lawyer's fitness to practice law). The issue arose after Phillips made inappropriate sexual remarks to a prospective client. During the investigation, Phillips admitted to making the comments, apologized, and blamed his prior history of substance abuse as a precipitating factor.

HEARING PANEL: At the hearing, the panel concluded that Phillips was not fully honest when answering questions from the disciplinary administrator's office. After considering the other aggravating and mitigating factors, and the Disciplinary Administrator's conditional recommendation of probation, the hearing panel recommended that Phillips be suspended for one year with a two-year term of probation starting after 30 days.

HELD: The hearing panel's findings were deemed admitted. At oral argument, the Deputy Disciplinary Administrator introduced evidence to show that Phillips was not in compliance with his proposed probation plan. Because of this evidence, the court ruled that probation was not an appropriate disposition. The court suspended Phillips for one year and refused probation.

criminal

criminal law—fraud and deceit—statutes
state v. ward
johnson district court—reversed; court of appeals—affirmed
No. 111,640—january 12, 2018

FACTS: As a loan to All Construction Guaranteed Roofing and Restoration (ACG), a company formed and operated by Ward and Rhodes, Sweeney wrote a Bank of America check to ACG. Ward added his name as a payee on the check, and deposited it in his personal account at First National Bank. State charged Ward with theft by deception from ACG or Bank of America, and with making false information. On appeal, Wade claimed insufficient evidence supported the theft by deception conviction, and the State proved the crime of forgery rather than making false information. Court of Appeals agreed and reversed both convictions. State v. Ward, 52 Kan.App.2d 663 (2016). State’s petition for review granted.

ISSUES:(1) Theft by deception; (2) making false information

HELD:On facts in this case, insufficient evidence supported Ward’s conviction of theft by deception. No proof that either of the two possible victims named in the charging document and jury instruction was deceived by Ward. Departing from panel’s analysis, Supreme Court finds the theft by deception from Bank of America fails because First National Bank, rather than Bank of America, was deceived by Ward’s actions.

Making false information and forgery statutes are interpreted, with extensive discussion of their statutory history. A defendant’s conviction for making false information can be affirmed regardless of whether the criminal conduct pertains to his or her own business or affairs. Any earlier statement in or impression from State v. Rios, 246 Kan. 517 (1990), and Sate v. Gotti, 273 Kan. 459 (2002), to the contrary is explicitly rejected. Under facts in this case, evidence that Ward altered the payee line of a check was insufficient to prove he made false information.

STATUTES: K.S.A. 2016 Supp. 21-5801(a)(1), -5801(a)(2), -5811, -5823, -5823(a), -5824, -5824(a), 84-3-103(5); K.S.A. 2012 Supp. 21-5111(e), -5111(s); K.S.A. 21-5801, -5801(a)(2), -5824, -6804, -6807; K.S.A. 1996 Supp. 21-3711; K.S.A. 21-3711 (Ensley 1988); and K.S.A. 1970 Supp. 21-3710, -3711; G.S. 1923, 21-601 through 637

Kansas Court of Appeals

Civil

ACQUIESCENCE—DEBTORS—JUDGMENTS—MOOTNESS
SECURITY BANK OF KANSAS CITY V. TRIPWIRE OPERATIONS GROUP, LLC
WYANDOTTE DISTRICT COURT—APPEAL DISMISSED
NO. 117,534—JANUARY 12, 2018

FACTS: Security Bank of Kansas City had a guaranty contract with Anthony Nichols to guarantee the debts of Tripwire Operations Group, LLC. When Tripwire defaulted on a credit card, the Bank sued Tripwire, Nichols, and Ryan Morris. After the district court granted summary judgment to the Bank, Nichols appealed. After the appeal was docketed but before it could be heard by the panel, the Bank moved to involuntarily dismiss this appeal on grounds of mootness. The Bank claimed that Nichols acquiesced in the judgment because the Bank exercised its right of setoff and took money out of Nichols' bank account to cover the judgment.

ISSUES: (1) Availability of setoff as remedy; (2) mootness; (3) acquiescence

HELD: Setoff is a statutory self-help remedy available to banks. There is no requirement that any judicial action occur before setoff is exercised. And the guaranty contract signed by Nichols included a setoff provision. In the absence of a stay of the judgment against Nichols, the Bank exercised its right of setoff and satisfied its claim against Nichols. Once the judgment was satisfied, the Bank filed a satisfaction of judgment. The satisfaction of judgment concluded this litigation, rendering this appeal moot. Because the setoff was not a voluntary relinquishment by Nichols, the doctrine of acquiescence did not apply.

STATUTES: K.S.A. 2016 Supp. 60-262(d), -2401; and K.S.A. 9-1206, 60-721

Criminal

constitutional law—criminal law—evidence—fourth amendment—search and seizure
state v. bannon
sedgwick district court—affirmed
No. 112,212—january 12, 2018

FACTS: Acting on verified information, officers located Bannon in student apartment lobby and found a concealed hand gun during a pat-down search. Bannon filed motion to suppress this evidence, arguing it was taken during a warrantless search of his person within the curtilage of his apartment, or alternatively, the officers lacked reasonable suspicion or probable cause to seize and search him. District court denied the motion, and jury convicted Bannon of criminal carrying of a weapon. On appeal Bannon claimed he was in lawful possession of the firearm because the front lobby to his apartment building qualified as part of his abode or curtilage. He also claimed the district court erred in not granting his motion to suppress, arguing the evidence was discovered as a result of an improper pat-down search. In unpublished opinion, Court of Appeals found the motion to suppress should have been granted because a warrantless pat-down search occurred without evidence a law enforcement officer had an actual, subjective belief Bannon was armed and presently dangerous, or that officers were reasonably concerned for their safety or safety of others. State’s petition for review granted. Supreme Court reversed and remanded, adopting and applying a hybrid approach to the second step of a Terry stop: testimony as to officer’s subjective belief or fear is a factor for consideration in the objective analysis of the totality of the circumstances, but absence of such testimony does not invalidate the reasonableness of a frisk. State v. Bannon, 306 Kan. 886 (2017).

ISSUES: (1) Curtilage or abode, (2) motion to suppress

HELD: Issue of first impression in Kansas as to whether the lobby of an apartment building is considered the tenant’s land or abode under K.S.A. 2012 Supp. 21-6302(a)(4). Under analysis in recent unpublished Kansas Court of Appeals case and cases in other jurisdictions, the student apartment lobby in this case was not an extension of Bannon’s apartment or abode. More than nonexclusive permissive use with others is needed. Also, at time of the stop and frisk, Bannon was sitting in a chair reading. He was not using the lobby as an extension of his land through an ingress-egress easement, and had no right under an easement to possess a firearm in the front lobby.

District court’s denial of Bannon’s motion to suppress did not violate the Fourth Amendment. The stop of Bannon in the lobby was sufficiently public for officers to initiate the stop. Considering the totality of the circumstances, and applying the hybrid test adopted by the Supreme Court, it was objectively reasonable for the officers to believe Bannon had a gun and to perform a pat-down search for their safety and the safety of others.

STATUTES: K.S.A. 2012 Supp. 21-6302, -6302(a)(4)

criminal

criminal law—evidence—statutes
state v. brazzle
riley district court—affirmed
No. 116,649—january 12, 2017

FACTS: Brazzle was convicted of drug charges involving methamphetamine and possession of oxycodone based on gray pills identified by an officer using www.drugs.com. District court allowed State to present evidence that Brazzle was involved in undercover methamphetamine transactions a week before his arrest in this case. On appeal, Brazzle claimed the admission of this K.S.A. 60-455 evidence was error because he never claimed his possession of methamphetamine was innocent, and the potential prejudice outweighed its probative value. He next challenged the jury instruction on the elements for possession of oxycodone. Third, he claimed insufficient evidence supported the oxycodone conviction because the State failed to present evidence the pill was tested, and failed to present any evidence that Brazzle did not have a prescription for that drug.

ISSUES: (1) Admission of evidence, (2) jury Instruction, (3) sufficiency of the evidence - possession of a controlled substance, (4) proof of prescription

HELD: District court did not abuse its discretion by admitting the evidence under K.S.A. 60-455. By claiming the State could not prove the items discovered in the stopped vehicle belonged to him, Brazzle essentially raised a defense of innocence, and the evidence was highly probative of his intent to distribute the methamphetamine he possessed rather than to possess it for personal use.

Brazzle invited error by advocating the version of the instruction given to the jury.

Issue of first impression in Kansas. When sufficiency of the evidence for possession of a controlled substance is challenged, uncontroverted testimony by a witness identifying the substance through consultation with www.drugs.com is sufficient to support jury’s conclusion beyond a reasonable doubt that the substance was that identified by the witness. Here, this evidence was admitted without objection and without any evidence to the contrary. The officer’s testimony was sufficient for jury to reasonably conclude the gray pills were oxycodone hydrochloride.

Relevant statutes are interpreted. Lawful possession of a controlled substance by prescription is an affirmative defense to the charge of possession of a controlled substance under K.S.A. 2016 Supp. 21-5706. A person charged with unlawful possession of a controlled substance must bring forward a claim of legal authorization to possess the controlled substance at issue.

CONCURRENCE and DISSENT (Atcheson, J.): Dissents from majority’s finding that sufficient evidence supported the possession of oxycodone conviction. Here the jurors had to speculate on the facts and basic details about the officer’s internet-based identification of the seized pills as oxycodone, and cases cited by the majority are inapposite to the majority’s conclusion.

STATUTES: K.S.A. 2016 Supp. 21-5706, 60-455, -455(b), 65-4107(b)(1)(N), -4107(b)(2), -4116(a), -4116(b), -4116(c), -4116(c)(3), -4123, -4123(a), -4123(b); K.S.A. 60-455, 65-4101 et seq.

criminal

constitutional law—due process—criminal law—criminal procedure—statutes
state v. owens
wyandotte district court—reversed and vacated
No. 116,979—january 12, 2018

FACTS: Owens was convicted in 2003 of aggravated indecent liberties with a child, and was required to register with sheriff four times a year. He did so in 2014, but was unable to pay the $20 fee for each registration. Each failure to pay was itself a crime absent compliance with K.S.A 2014 Supp. 22-4905(k)(3) which provides waiver of the fee payment only if the offender obtained a judicial finding of indigency prior to the required reporting. Owen challenged the constitutionality of that statute, as applied to him, as not providing procedural due process.

ISSUE: Due Process

HELD: Finding a defendant criminally liable for failure to pay the $20 registration fee under the Kansas Offender Registration Act violates the defendant’s procedural-due-process rights as applied in this case because Owens had no reasonably available path to get a court finding of indigency. Owens received no notice of a procedure he could use to get a court to determine he was unable to pay the fee before his registration dates, and Legislature provided no clear guidance about how one might do so.

STATUTE: K.S.A. 2014 Supp. 21-5203(f), 22-4903, -4903(c)(3), -4905, -4905(k)(3)

Tags:  Attorney Discipline  Johnson  Riley  Sedgwick  suspension  Wyandotte 

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November 9, 2017 Digests

Posted By Administration, Monday, November 13, 2017
Updated: Monday, November 13, 2017

Kansas Supreme Court

Attorney Discipline

ORDER OF PUBLISHED CENSURE
IN THE MATTER OF LAWRENCE E. SCHNEIDER
NO. 117,361 – NOVEMBER 9, 2017

FACTS: A hearing panel determined that Schneider violated KRPC 1.3 (diligence) and 1.4(b) (communication). These violations arose after Schneider failed to list possible federal and state earned income credit exemptions on bankruptcy petitions. Schneider's inaction resulted in his clients' inability to respond to orders from the court.

HEARING PANEL: The panel noted that Schneider's actions were negligent and that he timely made restitution to his clients which ameliorated the consequences of his misconduct. Schneider also fully cooperated with the hearing panel and acknowledged wrongdoing. The disciplinary administrator recommended a 3-month suspension. The hearing panel noted that in the 2 years since the misconduct first arose there had been no further incidents and that Schneider had taken steps to correct his diligence issues. For those reasons, the hearing panel suggested published censure.

HELD: The court adopted the hearing panel's conclusions. After following up with the complainant, the disciplinary administrator recommended at the hearing on this matter that Schneider be disciplined by published censure. The court agreed and the sentence was imposed. 

Civil

STATUTORY CONSTRUCTION
HAYES V. STATE
SEDGWICK DISTRICT COURT – AFFIRMED
COURT OF APPEALS – AFFIRMED
NO. 108,233 – NOVEMBER 9, 2017

FACTS: Hayes was convicted of involuntary manslaughter in 1998. After his release from prison, Hayes was charged with two counts of violating the Kansas Offender Registration Act. He was sentenced to probation but violated the terms and he served a 38-month prison sentence. After that conviction and sentence, Hayes filed a K.S.A. 60-1507 motion in which he challenged, among other things, amendments to KORA. Hayes acknowledged before the district court that his 1507 pleading was untimely, but he asked the court to rule on the merits. The district court disagreed and denied the motion on grounds that Hayes could not show manifest injustice such that the 1-year time limitation should be extended. Hayes appealed. The Court of Appeals affirmed that decision and Hayes' petition for review was granted.

ISSUE: (1) Constitutionality of subjecting Hayes to the 1-year statute of limitations

HELD: After Hayes filed his motion, the Legislature amended K.S.A. 60-1507 to more clearly define what constitutes manifest injustice. The question of whether that amendment applies retroactively to Hayes need not be answered because Hayes cannot show manifest justice under any standard.

STATUTES: K.S.A. 2016 Supp. 60-1507(f); K.S.A. 2006 Supp. 22-4904(b); K.S.A. 1997 Supp. 22-4902(d)(5), -4906(a); K.S.A. 60-1507

criminal

attorneys and clients – constitutional law – criminal procedure – sentencing
state v. richardson
sedgwick district court – affirmed 
court of appeals – affirmed
no. 107,786 – november 9, 2017

FACTS: Richardson convicted in 2003 of sale of cocaine.  After he was sentenced, the Kansas Offender Registration Act (KORA) was amended to require registration by those convicted of that drug offense.   Richardson thereafter pled guilty to offender registration violations.  Prior to sentencing he filed pro se motions to withdraw his plea and for appointment of new counsel, pursuing an ex post facto challenge to the retroactive application of the amended KORA.  District court denied both motions.  Richardson appealed claiming he should have been allowed to withdraw his plea, and claiming his attorney failed to advise him of the ex post facto issue.  In unpublished opinion, Court of Appeals affirmed. Richardson’s petition for review granted.  

ISSUES: (1) Ex Post Facto Challenge to KORA; (2) Conflict of Interest - Attorney and Client

HELD: Lifetime sex offender registration under KORA does not constitute “punishment” for application of the Eighth Amendment or the Ex Post Facto Clause.  Non-sex offenders seeking to avoid retroactive application of KORA provisions must satisfy the “effect” prong of test set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), by producing a record that distinguishes — by the “clearest proof” — KORA’s effect on those classes of offenders from KORA’s effects on sex offenders as a class. Richardson failed to do so on the the record in this case.

Richardson cannot show his attorney provided incorrect legal advice.  District courts are reminded that if they become aware of a potential conflict between a defendant and his or her attorney, they abuse their discretion if they fail to conduct an inquiry.

DISSENT (Beier, J., joined by Rosen and Johnson, JJ.):  Dissent is consistent with her votes in State v. Petersen-Beard, 304 Kan. 192 (2016); State v. Reed, 306 Kan. 899 (2017); and State v. Meredith,306 Kn. 906 (2017).  Richardson met any burden of proof he bore at this point, and should be permitted to withdraw his plea for good cause shown.    

STATUTES: K.S.A. 2010 Supp. 22-4904(c); K.S.A. 2007 Supp. 22-4902(a)(11)(C); K.S.A. 22-4901 et seq.

Kansas Court of Appeals

Civil

FORUM SELECTION – JURISDICTION – VENUE
AKESOGENX COR V. ZAVALA
JOHNSON DISTRICT COURT – AFFIRMED
NO. 116,896 – NOVEMBER 9, 2017

FACTS: AkesoGenX Corporation (AKG) is a Delaware corporation with its principal place of business in Kansas. Zavala was AKG's CEO. He was terminated after money was found to be missing from the company's accounts. AKG sued both Zavala and Kunkle, the company's Secretary/Treasurer, for breach of fiduciary duty and conversion. After Zavala failed to appear at a scheduling conference, the district court granted default judgment to AKG. Zavala then moved to set aside the default, claiming that he was never served with the petition. That motion was denied. Zavala responded by filing a motion to reconsider. In that motion, Zavala claimed, for the first time, that the judgment was void because AKG's articles of incorporation included a forum selection clause that required all proceedings to be in Delaware. That motion was denied and Zavala appealed.

ISSUES: (1) Denial of the motion to reconsider; (2) Whether the forum selection clause was mandatory or permissive; (3) Denial of motion to set aside default judgment

HELD: Forum selection clauses are valid in Kansas as long as certain criteria are met. But the existence of a forum selection clause does not divest a court of subject matter jurisdiction. In this case, Zavala's complaint was really about venue. And complaints about venue can be waived. In order to preserve the complaint an objection to venue must be timely raised in a responsive pleading. While Zavala did raise the issue in a pleading it was not timely. Because AKG could consent to venue outside of Delaware, the forum selection clause in its articles of incorporation was permissive rather than mandatory. And the evidence shows that AKG waived venue in Delaware when it initiated this legal action in Kansas. Zavala failed to include the transcript from the hearing on the motion to set aside default judgment. In the absence of that transcript, the district court's decision cannot be evaluated. Since Zavala had the burden to designate the appellate record his argument fails. Because service was properly obtained on Zavala in California, it does not matter if service was not perfected in Texas.

STATUTES: K.S.A. 2016 Supp. 60-205, -205(b)(2)(B)(ii), -205(e), -212(b)(3), -255(b), -258, -259(f), -260(b)(1), -308(a); K.S.A. 60-260(b)(6)

 

Civil

IMMUNITY – REASONABLE SUSPICION – TORT CLAIMS
SCHREINER V. HODGE
JOHNSON DISTRICT COURT – AFFIRMED
NO. 117,034 – NOVEMBER 9, 2017

FACTS: Police officers in the City of Mission received two reports of a suspicious truck. Both callers reported seeing a man park the truck and then walk into the woods. While Officer Hodge was investigating the second report, Schreiner walked out of the woods and back to his truck. Schreiner refused to answer Officer Hodge's questions and attempted to leave the scene in the truck. Officer Hodge temporarily detained Schreiner until he could finish the investigation. After the investigation did not disclose any illegal activity, Schreiner was allowed to leave. The entire encounter took between 20 and 25 minutes. Schreiner filed a pro se action against Officer Hodge seeking damages for assault, battery, false arrest, and false imprisonment. Officer Hodge moved for summary judgment claiming discretionary function immunity. The district court agreed and granted the motion. Schreiner appealed.

ISSUES: (1) Application of discretionary function immunity

HELD: A police officer may detain a citizen if the officer reasonably suspects that criminal activity is occurring. This is a discretionary act based on the officer's training and experience. Schreiner's actions were suspicious and his actions in dealing with Officer Hodge provided justification for the subsequent investigation. For this reason, Officer Hodge is entitled to discretionary function immunity and summary judgment was appropriate.

CONCURRENCE AND DISSENT (Atcheson, J.): Because Officer Hodge's action was unreasonable under the Fourth Amendment his behavior cannot be excused by the discretionary function exception.

 STATUTES:  K.S.A. 2016 Supp. 75-6104(e); K.S.A. 22-2402(1)

Tags:  Attorney Discipline  Johnson  Sedgwick 

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August 18, 2017 Digests

Posted By Administration, Tuesday, August 22, 2017

Kansas Supreme Court

Attorney Discipline

ORDER OF DISBARMENT
IN THE MATTER OF DANIEL L. BALDWIN
NO. 16283 – AUGUST 16, 2017

FACTS: In a letter signed August 16, 2017, Daniel L. Baldwin, attorney licensed to practice law in Kansas, voluntarily surrendered his license to practice law in Kansas. At the time Baldwin surrendered his license a formal hearing was pending regarding two docketed disciplinary complaints. The complaints involved issues of competence, diligence, safekeeping property, and fees.

HELD: The court examined the files of the office of the Disciplinary Administrator and found that the surrender of Baldwin's license should be accepted and that he should be disbarred.

 

Criminal

constitutional law—criminal procedure—sentences—statutes
State v. shaylor
reno district court—affirmed on issues subject to review
court of appeals—affirmed on issues subject to review
no. 108,103—august 18, 2017

FACTS: Shaylor was convicted of manufacturing methamphetamine. Kansas Offender Registration Act (KORA) was subsequently amended to define an “offender” required to register as including Shaylor’s offense unless a court found the manufacturing of the controlled substance was for personal use. Shaylor was then convicted of failing to register as a drug offender. On appeal, she claimed the retroactive application of the KORA amendment violated the Ex Post Facto Clause, and also claimed for first time on appeal the district court’s finding as to whether Shaylor possessed drug precursors for personal use violated Apprendi. In an unpublished opinion, Court of Appeals affirmed on these issues. Review granted.

ISSUE: Kansas Offender Registration Act - Ex Post Facto and Apprendi

HELD: As set forth in State v. Meredith,  306 Kan. __ (2017), non-sex offenders seeking to avoid retroactive application of KORA provisions must, in order to satisfy “effects” prong of test in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), produce a record that distinguishes - by the “clearest proof”- KORA’s effect on those classes of offenders from the Act’s effects on sex offenders as a class. Record in Shaylor’s case failed to make this required showing. This also defeats her Apprendi claim about the district court’s finding as to personal use.

DISSENT (Beier, J., joined by Rosen and Johnson, JJ.): Dissent is consistent with votes in Meredith and State v. Huey, 306 Kan. __ (2017). The current KORA registration requirement is punishment in effect if not intent, whether claim is raised under Ex Post Facto Clause or Eighth Amendment. And it is no less so for a drug offender than a sex offender.

STATUTES: K.S.A. 2002 Supp. 22-4902; K.S.A. 20-3018(b), 22-4901 et seq., -4902(a)(11)(A), 60-2101(b)

  

Kansas Court of Appeals

 

Civil

IMMUNITY—NEGLIGENCE
WILLIAMS V. C-U-OUT BAIL BONDS
JOHNSON DISTRICT COURT—AFFIRMED
NO. 116,883—AUGUST 18, 2017

FACTS: The Williams family was at home when several armed representatives of C-U-Out Bail bonds came to their door searching for their daughter-in-law, who had absconded. Although they told the bond company that the daughter-in-law was not at the house, the company refused to leave and forced its way in with a steel battering ram. The Williamses called the police department for help. Overland Park police officers came near the scene but never on the Williams' property, and the officers watched while the bond company entered the home and allegedly threatened the occupants. The Williamses filed suit against both the bond company and the Overland Park Police Department. The district court granted the city's motion to dismiss for failure to state a claim, finding that the police officers who responded to the call owed no duty to the Williamses, and that the city was immune from liability under the discretionary function exception to the Kansas Tort Claims Act. The Williamses appealed.

ISSUES: (1) Proper standard of review; (2) did the police department owe a duty to the Williamses? (3) is there immunity under the KTCA?

HELD: Kansas has not yet adopted the federal standard of review for motions to dismiss. The court is not required to accept as true legal conclusions that are contained within the petition. Under the "public duty doctrine", a governmental agency owes a duty to the public at large rather than to individuals. Here, the officers' act of responding to a 911 call did not create a special relationship. Deciding whether to make an arrest is discretionary on the officers' part. Their investigation here is not meant to be subject to judicial review, and the district court properly found immunity under the KTCA.

STATUTES: K.S.A. 2016 Supp. 22-2202(m), 60-208(a), 75-6104(c), -6104(e), -6104(n); K.S.A. 13-1339, 22-2401, -2405(3), -2809

STATUTORY INTERPRETATION—ZONING
LAYLE V. CITY OF MISSION HILLS
JOHNSON DISTRICT COURT—REVERSED
NO. 116,095—AUGUST 18, 2017

FACTS: The Layles' fence at their residence did not meet zoning regulations in Mission Hills. But over 20 years, the Layles were given two variances to either repair or replace the fence, even though it would not meet regulations. In 2012, the Layles sought to remove and replace the pickets and rails of the fence without changing the fence posts. The city denied the request, finding that the work could not be authorized without approval from the Architectural Review Board and the Board of Zoning Appeals. After a number of appeals, the ultimate decision was that the proposed work was a replacement of the fence requiring new variances. The Layles appealed.

ISSUES: (1) Application of correct standard of review; (2) was the proposed work a repair or a replacement

HELD: An issue that requires a court to interpret regulatory or statutory criteria uses a de novo standard of review and not a review for reasonableness. Whether the proposed fence project constituted a repair or a replacement was actually a question of law. Repair of fence sections did not constitute a full replacement. Repairs do not require a variance and the city could have granted the building permit that was requested by the Layles.

STATUTES: K.S.A. 12-759(e)(1), -759(f)

CIVIL PROCEDURE—CONTRACTS—DIVORCE—EVIDENCE
IN RE MARRIAGE OF JOHNSTON
JOHNSON DISTRICT COURT—REVERSED AND VACATED
NO. 115,256—AUGUST 18, 2017

FACTS: The Johnstons divorced in 2011. Despite having significant assets and debts and highly technical military pay, the couple created a separation agreement without the assistance of counsel. They agreed that Jim would pay Pamela $1,000 per month from his military retirement pay for the rest of her life, unless she remarried. He also agreed to a lump-sum transfer of $100,000 from his retirement account. After 3 years, Jim motioned the district court to relieve him of his duty to pay Pamela $1,000 because, he alleged, Pamela was living in a marriage-like relationship. That motion was denied. But the district court sua sponte put a 121-month cap on Jim's maintenance obligation. Pamela did not appeal this order, but she did obtain counsel and sought to reopen the separation agreement regarding Jim's military retirement benefits. After hearing testimony, the district court divided Jim's military retirement benefits equally between both parties but did not alter the obligation to pay maintenance for 121-months. Jim appealed.

ISSUES: (1) Authority to modify property settlement agreement; (2) ability to modify earlier order on spousal maintenance

HELD: Authority to modify the separation agreement would have had to come from K.S.A. 60-260(b)(6). There was no ambiguity in the agreement or any evidence of mistake. But even if there was, Pamela failed to seek relief within one year. Because a more specific provision of K.S.A. 60-260(b) applied, Pamela is barred from using the catchall provision at 260(b)(6) in an attempt to circumvent the statutory time limits. The district court had no jurisdiction to modify the prior separation agreement and its order doing so is void. Parties may agree to extend maintenance beyond the 121-months mentioned in the statute.

DISSENT: (Leben, J.) The property settlement agreement was ambiguous, giving the district court jurisdiction to modify it under K.S.A. 60-260(b)(6).

STATUTES: K.S.A. 2016 Supp. 23-2712, -2801, -2904, 60-260(b); K.S.A. 60-260(b)

ATTORNEY FEES—JUDGMENT
RICHARDSON V. MURRAY
JOHNSON DISTRICT COURT—AFFIRMED IN PART, REVERSED IN PART, REMANDED
NO. 115,745—AUGUST 18, 2017

FACTS: The Richardsons purchased a home from the Murrays, and brought suit after experiencing water intrusion in the residence. Before trial, the Murrays submitted an offer of judgment and the Richardsons accepted it. After judgment was entered, the Richardsons sought attorney fees and expenses. The district court allowed court costs but not attorney fees, and the Murrays promptly tendered payment. The Richardsons failed to timely file a satisfaction of judgment. As a result, the Murrays sought an award of statutory penalties and attorney fees. The district court granted that motion and the Richardsons appealed.

ISSUES: (1) Decision on attorney fees and related expenses; (2) untimely satisfaction of judgment

HELD: The offer of judgment was silent on whether attorney fees were included with court costs. Generally, attorney fees are not part of costs and are available only if a statute or other authority defines costs to include attorney fees. As the offering party, the Murrays were obligated to make a clear and unambiguous offer. Because the offer was silent on this matter, the Richardsons were allowed to seek attorney fees outside the context of costs. Under the terms of the contract, the Murrays must reimburse the Richardsons for all reasonable attorney fees for work reasonably performed in pursuing relief. Filing a satisfaction of judgment would not have prevented the Richardsons from appealing the district court's denial of their request for attorney fees. For that reason, the district court did not err in assessing the statutory penalties against the Richardsons.

STATUTES: K.S.A. 2016 Supp. 60-254(a), -2002, -2003, -2803; K.S.A. 50-634(e) 

 

Criminal  

constitutional law—criminal procedure—evidence—Fourth Amendment—jury trial—search and seizure
state v. chavez-majors
butler district court—affirmed in part, reversed in part, remanded
no. 115,286—august 18, 2017

FACTS: Chavez-Majors had a motorcycle accident, and was unconscious when officer and EMS arrived at scene. Observing evidence that Chavez-Majors had been under the influence of alcohol, officer directed EMS to conduct warrantless blood draw. Test results showed twice the legal blood-alcohol limit. District court denied Chavez-Majors’ motion to suppress the test result, finding officer had probable cause with exigent circumstances to justify the warrantless search and seizure. Chavez-Majors was convicted at a bench trial of aggravated battery while driving under the influence (DUI). On appeal, he claimed for first time that he did not waive his right to a jury trial. He also claimed the district court erred by denying motion to suppress evidence that was unconstitutionally obtained.

ISSUES: (1) Waiver of right to jury trial, (2) motion to suppress blood draw evidence

HELD: Waiver claim was considered. Two-part test in State v. Irving, 216 Kan. 588 (1975), is applied finding Chavez-Majors did not knowingly and voluntarily waive right to jury trial. District court’s mention that plea agreement was in part “in contemplation of waiver of right to jury trial” did not satisfy Irving’s first requirement, and there was no compliance with Irving’s second requirement. The conviction was reversed and case was remanded to afford right to jury trial or to effect a valid waiver.

Consent exception, or applicability of Kansas implied consent statute, was not asserted  in this case, and third requirement of three-part test in Schrmerber v. California, 384 U.S. 757 (1966), was not challenged. The first two parts of the Schrmerber test were applied to the two claimed exceptions. Limited Kansas case law found applying Schmerber’s exigent circumstances requirement in warrantless blood draw DUI cases. Comparable U.S. Supreme Court reviewed for guidance, finding the metabolism of blood alcohol is a factor that can be considered. Under totality of circumstances in this case, district court’s conclusion that probable cause with exigent circumstances justified the warrantless blood draw was supported by substantial competent evidence.

STATUTES: K.S.A. 2014 Supp. 8-142, -262(a)(1), -1001 et seq., -1001(b)(2), 21-5413(b)(3)(A),  22-2502(a), 40-3104(d); K.S.A. 8-1567, 22-3403(1)

Tags:  Attorney Discipline  Butler  Johnson  Reno 

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May 19, 2017 Digests

Posted By Administration, Tuesday, May 23, 2017
Updated: Wednesday, January 31, 2018

Kansas Supreme Court

Criminal

CRIMINAL PROCEDURE—SENTENCING
STATE V. BAILEY
JOHNSON DISTRICT COURT—AFFIRMED AND REMANDED WITH DIRECTIONS
NO. 112,888—MAY 19, 2017

FACTS: Bailey was convicted of first-degree felony murder and sentenced to a term of life imprisonment. The district court also set a restitution amount of $37,521.07. Bailey's conviction was affirmed on direct appeal and he has had numerous other appeals relating to his sentence. This appeal comes after Bailey filed a motion to find that his restitution judgment was dormant and that any funds already paid should be reimbursed to him. He also appeals the denial of his motion to correct illegal sentence.

ISSUES: (1) Was restitution wrongly collected; (2) is Bailey's sentence illegal

HELD: The sentencing court merely provided an advisory calculation of restitution for the parole board to consider, rather than an enforceable judgment of restitution. Because there was no order, the dormancy statutes do not apply. But a clerical error triggered the wrongful collection of Bailey's money, and the case had to be remanded to correct that error which was affecting the current collection of restitution from Bailey. Bailey's offenses were properly classified and his sentence was not illegal.

STATUTES: K.S.A. 2013 Supp. 60-2403; K.S.A. 1993 Supp. 21-3401(b), -3427; K.S.A. 1991 Supp. 21-4603; K.S.A. 1986 Supp. 21-4603; K.S.A. 22-3504, 60-2403, -2404

EVIDENCE—JURY INSTRUCTIONS—PROSECUTORIAL MISCONDUCT
STATE V. DAVIS
SHAWNEE DISTRICT COURT—AFFIRMED IN PART AND REVERSED IN PART
NO. 113,537—MAY 19, 2017

 FACTS: Davis was arrested for the murder of 8-year-old, A.I. He was apprehended and taken to the police station. After an interrogation which detectives alleged was consensual, Davis admitted to multiple burglaries and also confessed that he beat, choked, and raped A.I. before putting her in the clothes dryer where she was found. Davis denied that he intended to kill her and expressed surprise that she was dead. Davis was convicted of multiple counts, including capital murder and rape. The jury declined to impose the death penalty.

ISSUES: (1) Was there sufficient evidence of premeditation; (2) was Davis prejudiced by prosecutorial misconduct; (3) was Davis' confession properly viewed as voluntary; (4) were the jury instructions erroneous; (5) were convictions for capital murder and rape multiplicitous

HELD: In order to prove lack of premedication, Davis must establish that evidence supporting the State's theory was legally insufficient. Death by strangulation presents strong evidence of premeditation. The prosecutor misstated the law during closing argument and injected error into the trial. Because of the ample evidence at trial, the error did not affect the trial's outcome. And if Davis meant to rely on a voluntary intoxication theory, he had the burden to prove impairment. The record supports the district court's decision not to suppress Davis' confession. The jury was instructed on unanimity in a separate instruction, rendering Davis' requested instruction unnecessary. Because the jury was properly instructed, there was no error in refusing a jury instruction that would merely have added emphasis. Because Davis was convicted of capital murder for a killing caused during commission of or subsequent to rape, his conviction for rape was multiplicitous and must be reversed.

STATUTES: K.S.A. 2016 Supp. 60-261; K.S.A. 2011 Supp. 21-5401(a)(4), -5401(a)(7), -5402(a)(1)

Tags:  Johnson  Shawnee 

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