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December 14, 2018 Digests

Posted By Administration, Monday, December 17, 2018

Kansas Supreme Court

Attorney Discipline

6-MONTH SUSPENSION
IN THE MATTER OF LARA M. OWENS
NO. 118,693—DECEMBER 14, 2018

FACTS: A hearing panel of the Kansas Board for Discipline of Attorneys found that Owens violated KRPC 1.1 (competence), 1.3 (diligence), 1.4(a) (communication), 1.15(b) (safekeeping property), 1.16(d) (termination of representation), 8.1(b) (failure to respond to a demand from a disciplinary authority), 8.4(d) (engaging in conduct prejudicial to the administration of justice), and Rule 207(b) (failure to cooperate in a disciplinary investigation). The complaint arose after clients alleged that Owens failed to inform them of the relevant statute of limitations, failed to timely file lawsuits, and failed to communicate about case status. Owens failed to respond to an initial letter from the investigator and also ignored the follow-up email.

HEARING PANEL: Owens and the disciplinary administrator stipulated to some facts, including Owens' failure to provide her clients with timely updates on the status of their actions and her failure to cooperate in the disciplinary process. Owens was on diversion when some of the alleged misconduct occurred. She was also being treated for anxiety issues. The disciplinary administrator initially agreed to a two-year probation term with an underlying two-year suspension. But Owens failed to perform all of the required steps to put a plan in place, and both the disciplinary administrator and the hearing panel instead recommended a six-month suspension of Owens' license.

HELD: Clear and convincing evidence supports the hearing panel's findings regarding Owens' rule violations. Owens failed to comply with Rule 211(g), which establishes the tasks an attorney must undertake in order to be placed on probation. For that reason, probation is not an appropriate sanction. Based on the nature and duration of Owens' misconduct, a majority of the court imposed a six-month suspension of Owens' license. A minority of the court would have imposed a shorter suspension. Owens must undergo a Rule 219 hearing before her license can be reinstated.

criminal

appeals—constitutional law—evidence—motions—
prosecutors—sentences—statutes
state v. wilson
reno district court—reversed on issue subject to review and remanded
court of appeals—affirmed on issue subject to review
No. 114,567—december 14, 2018

FACTS: Wilson was convicted in 2007. State filed 2015 motion to correct an illegal sentence, arguing it was error not to impose lifetime post release supervision. Citing State v. Freeman 223 Kan. 362 (1978), Wilson claimed lifetime supervision was cruel and unusual punishment. District court granted the state’s motion. Wilson appealed, claiming in part he was denied a fair sentencing hearing when prosecutor misstated facts of Wilson’s case and mischaracterized facts in an unpublished opinion Wilson cited in support of his Freeman claim. A divided court of appeals panel affirmed in an unpublished opinion, finding appellate review was appropriate of claim of prosecutorial error in the context of a hearing on a motion to correct an illegal sentence, and applying test in effect prior to State v. Sherman, 305 Kan. 88 (2016).  State’s petition for review was granted. State claimed the prosecutorial error challenge was not preserved for appeal because Wilson did not object to the alleged misstatements during the sentencing hearing.

ISSUES: (1) Preservation of the appeal, (2) prosecutorial error

HELD: Because the state’s petition for review advances only a merit-based challenge to the prosecutorial error question, it waived review of panel majority’s conclusion on preservation.

Prosecutorial error may occur during a sentencing proceeding before a judge. The two-step analytical framework in Sherman applies in both the guilt and penalty phases of any trial —whether before a jury or judge. Applying the Sherman test, there was reversible error at Wilson’s sentencing hearing. Prosecutor’s factual misstatements about Wilson’s underlying crime fell outside the wide latitude afforded when arguing state’s motion to correct an illegal sentence, and the state failed to show there was no reasonable possibility this prosecutorial error contributed to the district court’s decision. State concedes the prosecutor misstated facts in the unpublished case Wilson cited, but no further need in this case to explore alleged error in a prosecutor’s discussion of caselaw. The case is remanded to district court to consider again the question under Freeman—whether imposing lifetime post release supervision on Wilson would be grossly disproportionate to his offense.

STATUTE: K.S.A. 20-3018(b), 21-3501(1), 60-261, -2101(b)

Kansas Court of Appeals

criminal

appeals—constitutional law—criminal procedure—
juveniles—sentences—statutes
state v. robinson
johnson district court—affirmed in part, reversed in part, and remanded
No. 117,957—december 14, 2018

FACTS: Robinson was convicted of aggravated robbery and kidnapping. His case was initially filed as a juvenile offender proceeding, and then moved to adult court where charges were amended to add kidnapping. On appeal, Robinson claimed he was denied his constitutional right to a speedy trial. He also claimed the state could not add charges once the case moved from juvenile to adult court, and claimed the state’s service of the arrest warrant was so late that the statute of limitations had expired.

ISSUES: (1) Speedy trial—juvenile proceedings, (2) amended charges, (3) statute of limitations

HELD: Speedy-trial rights apply to juvenile-offender proceedings. On facts in this case, Robinson did not lose his constitutional right to a speedy trial by his delayed filing of his motion to dismiss. Delay from the time the state brought formal charges in the juvenile court until Robinson’s trial in an adult proceeding must be analyzed under factors in Barker v. Wingo, 407 U.S. 514 (1972). Case is remanded to district court to make the required factual findings under those factors.

When a criminal charge first made in juvenile proceedings is refiled as an adult proceeding, the state is not precluded from amending the charge. No departure from rule in State v. Randolph, 19 Kan.App.2d 730 (1994). Here, Robinson made no showing that adding the kidnapping charges substantially prejudiced his ability to defend himself at trial.

Statute-of-limitation defenses are waived if not timely raised. Even assuming Robinson could have raised the statute-of-limitation defense after the case had moved to adult proceedings, his failure to do so waived the defense. On remand, the district court may consider the state’s delay in serving the warrant, its cause, and any resulting prejudice when weighing the Barker factors to decide Robinson’s speedy-trial claim. 

STATUTES: K.S.A. 2017 Supp. 22-3208(4), 38-2303(d), -2303(g), -2347, -2347(b)(1), -2347(d)(1)-(3); K.S.A. 22-3201(e)

Tags:  Attorney Discipline  Johnson District  juveniles  Reno District  suspension  Weekly20181218 

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November 30, 2018 Digests

Posted By Administration, Monday, December 3, 2018

Kansas Supreme Court

Attorney Discipline

ORDER OF TEMPORARY SUSPENSION
IN RE DAVID P. CRANDALL
NO. 117,910—NOVEMBER 30, 2018

FACTS: A hearing panel of the Board of Discipline of Attorneys found that Crandall violated KRPC 1.1 (competence), 1.3 (diligence), 1.4(b) (communication), 1.5(a) (fees), 1.7(a) (concurrent conflict of interest), and 8.4(d) (conduct prejudicial to the administration of justice). An inquiry into Crandall's conduct began when a client wrote the Disciplinary Administrator questioning the reasonableness of Crandall's fees. Around the same time, a district court judge reported Crandall after most of the fees that he requested in a probate matter were rejected. An inquiry into Crandall's fees showed that he was either inexperienced or was doing work in an attempt to justify fees which were substantially higher than those charged by other attorneys in the area.

FACTUAL FINDINGS: Crandall challenged many of the findings made by the hearing panel. The Kansas rules of attorney discipline give the court disciplinary jurisdiction over Kansas-licensed attorneys even if the behavior occurs outside of Kansas. Crandall's failure to follow Supreme Court Rule 6.02 and the Rules of Evidence, which apply in attorney discipline proceedings, means his constitutional and evidentiary issues were not preserved for appeal. There was clear and convincing evidence that Crandall's fees were excessive given the amount of time and labor expended. In representing another client, Crandall's personal interest in having his fee paid conflicted with his duty to advise his client. And he charged an unreasonable fee when the value of the estate decreased significantly while the probate case was pending.

HEARING PANEL: The hearing panel noted Crandall's multiple rule violations, which it attributed to a selfish motive. The panel also noted Crandall's "angry and condescending" tone that was used through disciplinary proceedings. A majority of the hearing panel recommended a 6-month suspension. A minority would recommend a 1-year suspension.

HELD: A majority of the court agreed with the hearing panel and imposed discipline of a 6-month suspension. A minority of the court would have imposed a lesser sanction.

Attorney Discipline

ORDER OF INDEFINITE SUSPENSION
IN RE BRANDON W. DEINES
NO. 119,111—NOVEMBER 30, 2018

FACTS: The Disciplinary Administrator filed a formal complaint against Deines in 2017. He did not file an answer and was temporarily suspended in September 2017. A hearing panel determined that Denies violated KRPC 1.1 (competence), 1.3 (diligence), 1.4(a) (communication), 1.15(b) (safekeeping property), 1.16(d) (termination of representation), 3.2 (expediting litigation), 8.4(d) (engaging in conduct prejudicial to the administration of justice), 8.1 (b) (failure to respond to a disciplinary authority), and Rules 207(b) (failure to cooperate in a disciplinary investigation) and 211(b) (failure to file an answer in a disciplinary proceeding). A complaint was filed after multiple instances where Deines failed to act on behalf of his clients, resulting in dismissed cases and harm to his clients.

HEARING PANEL: The temporary suspension was sought because Denies' inaction caused significant harm to his clients. In addition, Deines' failure to participate in the disciplinary process made it difficult to investigate. The panel acknowledged that Deines' behavior was a result of his depression. The Disciplinary Administrator asked for an indefinite suspension. Because Deines' behavior was caused by his depression the hearing panel recommended a 2-year suspension.

HELD: Denies failed to respond to the hearing panel's report and failed to attend the formal hearing on the complaint. The court considered this absence an additional aggravating factor. For that reason, the court imposed an indefinite suspension rather than the 2-year suspension recommended by the hearing panel.

Criminal

constitutional law–criminal procedure–sentences–statutes
state v. Hayes
johnson district court—affirmed
No. 117,341—november 30, 2018

FACTS:  Kansas Supreme Court affirmed Hayes’ conviction of premeditated first-degree murder for a 2010 shooting death, but vacated the hard 50 sentence as unconstitutional and remanded for resentencing. State v. Hayes, 299 Kan. 861 (2014). On remand, district court applied 2013 amended legislation now codified at K.S.A. 2017 Supp. 21-6620, to again impose an enhanced hard 50 sentence. Hayes appealed, claiming retroactive application of K.S.A. 2017 Supp. 21-6620 violated the Ex Post Facto Clause. 

ISSUE: Retroactive Application of 2013 Amendments to K.S.A. 21-6620

HELD: Because the 2013 amendments to the sentencing provisions of K.S.A. 21-6620 are procedural in nature and do not change the legal consequences of acts completed before its effective date, the retroactive application of those sentencing procedures do not violate the Ex Post Fact Clause of the United States Constitution.  Hayes’ invitation to reverse rulings in State v. Bernhardt, 304 Kan. 460 (2016), State v. Robinson, 306 Kan. 431 (2017), and State v. Lloyd, 308 Kan. 735 (2018), is declined. 

STATUTES: K.S.A. 2017 Supp. 21-6620; K.S.A. 2015 Supp. 21-6620; K.S.A. 2013 Supp. 21-6620; K.S.A. 2010 Supp. 22-3717(b)(1); K.S.A. 21-4635, -4706(c)

criminal law- evidence - jury instructions - motions - statutes
State v. Ingham
reno district court—affirmed
court of appeals—affirmed
No. 111,444—november 30, 2018

FACTS: Ingham convicted of possession or use of a commercial explosive. On appeal he claimed: (1) district court erred by denying motion in limine to prevent State from using “pipe bomb” and “improvised explosive device” to describe the beer-can bomb; (2) a sheriff deputy improperly testified his opinion that Ingham combined lawfully obtained items to make an illegal improvised explosive device; (3) a jury instruction wrongfully reworded the statutory definition of “commercial explosive” by equating it to an “improvised explosive device;” (4) trial court should have sua sponte instructed jury on the definition of a consumer firework; and (5) cumulative error denied him a fair trial.

ISSUES: (1) Motion in Limine; (2) “Commercial Explosive” Testimony; (3) Instruction on Elements of Criminal Use of Explosives; (4) Consumer Firework Definition Instruction; (5) Cumulative Error

HELD:  Ingham failed to show that the use of words at issue was improper or that it unfairly prejudiced his defense. No abuse of district court’s discretion in allowing prosecution to use words and phrases that correctly and accurately described Ingham’s explosive device. 

Assuming without deciding that deputy’s statement was close enough to testimony that Ingham was guilty of the charged crimes, and assuming this error was of constitutional dimension, the error was harmless under facts in this case.

The challenged instruction moved beyond informing jury what the State was required to prove and informed jury that State had proved an improvised explosive device was a commercial explosive. This was error, but under facts in case, the error was harmless.

No error found in district court’s omission of an unrequested instruction that defined a consumer firework. Nothing in the record would have led jury to believe that Ingham’s beer-can explosive was a consumer firework, either in terms of construction or intended usage. 

The errors and assumed errors did not affect the two possible jury choices in this case, and even taken in their cumulative effect, did not prejudicially affect the jury’s verdict.

CONCURRENCE (Nuss, C.J.): Affirms Ingham’s conviction, but departs from majority’s rationale regarding the motion in limine. Would hold the district court abused its discretion by allowing repeated references to the “I.E.D.” that Ingham had constructed. Under facts in case, however, cumulative effect of errors is still harmless.

CONCURRENCE (Biles, J., joined by Stegall, J.): Agrees the conviction must be affirmed but would hold: district court did not abuse its discretion in denying the motion in limine; no error in the elements instruction on criminal use of explosives; and the one assumed error of opinion testimony regarding the beer can bomb provides no basis for cumulative error.

CONCURRENCE (Stegall, J.):  Agrees with court’s judgments, but registers doubts about statute under which Ingham was convicted. Would welcome briefing on whether K.S.A. 2017 Supp. 21-5814(a)(1) is too vague, indefinite, or overbroad to survive constitutional scrutiny. 

DISSENT (Johnson, J., joined by Luckert and Beier, JJ.): Would reverse and remand for a fair trial. Takes exception to majority’s cavalier disregard of the inflammatory connotation associated with the term I.E.D. Would find district court abused its discretion in denying motion in limine, and the error was compounded by deputy’s opinion testimony which improperly stated a legal conclusion on unlawfulness. Scales of justice were further tipped by instruction which erroneously equated “improvised explosive device” with “commercial explosive.” Criticizes majority for engaging in impermissible judicial fact-finding or mere supposition in determining a consumer firework definition instruction was not factually appropriate in this case. Agrees the omission of that instruction was not clearly erroneous, but submits the factual record did not preclude it.

STATUTES: K.S.A. 2017 Supp. 21-5814(a)(1), -5814(c)(2), 60-456; K.S.A. 2012 Supp. 21-5601(b)(1), -5814(a)(1), -5814(a)(2)

criminal procedure—sentences—statutes
state v. rice
wyandotte district court—reversed and remanded
No. 117,322—november 30, 2018

FACTS: Rice’s 1992 conviction for first-degree premeditated murder and hard 40 sentence were affirmed on appeals. Some twenty years later, Rice appealed from his unsuccessful attempt to seek collateral relief on a claim of ineffective assistance of counsel. Court of Appeals affirmed the conviction but found ineffective assistance during the penalty phase. Sentence vacated and remanded for a new penalty phase hearing and resentencing. At resentencing, district court ordered a life sentence with possibility of parole after 15 years. Two months later Rice filed pro se motion to modify or reduce his sentence, arguing he should have been given an updated PSI that accounted for his failing physical condition. He also argued the court could have ordered probation. District court denied modification, holding that Rice received the only sentence available under the law and that his motion for a new PSI was rendered moot. Rice appealed claiming: (1) district court had jurisdiction to modify or reduce his sentence and that reduction is mandatory with a recommendation from the Secretary of Corrections; and (2) district court erred in concluding that probation was not an available option.

ISSUES: (1) Jurisdiction to Modify or Reduce the Sentence on Remand; (2) Availability of Probation

HELD: Statutes applicable to Rice’s motion to modify his pre-KSGA sentence are reviewed. The re-sentencing court was correct in not modifying Rice’s sentence to a lesser term of years, but under State v. Sargent, 217 Kan. 634 (1975), if secretary of corrections unequivocally recommended reducing Rice’s life sentence to a term of years, the court would have to modify it unless best interest of the public would be jeopardized or Rice’s welfare would not be served by the reduction. As to whether the re-sentencing court was required to order an updated PSI that may have resulted in a facility recommendation that Rice should serve a lesser sentence, there is precedent for finding no error in district court’s refusal to do so.

Court of Appeals vacated Rice’s original sentence, so on remand the district court was imposing Rice’s sentence anew. Probation is a possibility for a person convicted of a Class A felony. The 2016 resentencing court abused its discretion by not understanding its own authority and being unable to consider exercising it. On remand for resentencing, district court should exercise its discretion to consider probation on the record.

STATUTES: K.S.A. 2017 Supp. 22-3601; K.S.A. 21-4701 et seq.; K.S.A. 1992 Supp. 21-3401, -3401(c), -4602(3), -4603 et seq., -4603(2), -4603(4), -4604(1), 22-3717(b); K.S.A. 21-4501(a) (Ensley 1988)

appeals—courts—criminal law—criminal procedure—evidence—jury instructions—motions
state v. sims
wyandotte district court—affirmed
No. 115,038—November 30, 2018

FACTS: Sims convicted of premeditated first-degree murder and criminal possession of a firearm. On appeal he challenged: (1) district court’s denial of motion for mistrial after State witnesses violated orders in limine prohibiting mention of Sims’ battery; (2) the sequential ordering of jury instructions for degrees of homicide; (3) district court’s failure to give a limiting instruction to accompany Sims’ stipulation to a prior felony conviction; and (4) cumulative error denied him a fair trial.

ISSUES: (1) Mistrial, (2) Ordering Language in Instructions, (3) Prior Felony Limiting Instruction, (4) Cumulative Error

HELD: On facts of case, district court did not abuse its discretion when it denied Sims’ motion for mistrial. State witnesses made three brief, cryptic references to material prohibited by orders in limine; and the judge recognized the errors and issued a curative admonition in one instance and moved the trial immediately to other topics in the second and third instances.

The simultaneous consideration rule in State v. Graham, 275 Kan. 831 (2003), and the exception to that rule as recognized in State v. Bell, 280 Kan. (2005), are reviewed. Bell’s mutual exclusivity test is problematic, and the simultaneous consideration rule in Graham is is overruled. In this case, the district court’s instructions were legally appropriate.

Even if evidence in a stipulation to a prior felony conviction is subject to K.S.A. 2017 Supp. 60-455 and its requirement that a district judge give a limiting instruction, the failure to give such an instruction in this case was not clear error.

Errors discerned or assumed in this case were discrete and did not compound one another. On the record presented, the totality of circumstances did not prejudice Sims or deprive him of a fair trial.

CONCURRENCE (Beier, J., joined by Lukert and Johnson, JJ.): Concurs with the result and all rationale but for majority’s reasoning regarding sequential and simultaneous jury consideration of degrees of homicide. Agrees that Bell and following cases are infected with a logical fallacy and would overrule them, but would not overrule Graham. Would hold the ordering language in the district court’s instructions was error, but not reversible error standing alone or under the cumulative error doctrine.

STATUTES: K.S.A. 2017 Supp. 22-3414(3), 60-455; K.S.A. 2012 Supp. 21-5109(b); and K.S.A. 22-3423, -3423(c)

constitutional law—criminal law—evidence—jury instructions—statutes
state v. williams
sedgwick district court—affirmed
court of appeals—affirmed
No. 108,394—november 30, 2018

FACTS: Williams forcibly entered residence of a woman he had been dating and where Williams had spent some nights the previous two weeks. Jury convicted him on charges of aggravated burglary, aggravated battery, aggravated assault, and domestic battery. Williams appealed. Court of Appeals affirmed in unpublished opinion. Review granted on six claims as reordered and combined by the court: (1) insufficient evidence supported his aggravated burglary conviction; (2) the aggravated burglary and domestic battery convictions were inconsistent and mutually exclusive; (3) district court erroneously instructed jury on aggravated assault when it told jury the State had to prove Willams used “a deadly weapon, a baseball bat;” (4) district court failed to instruct on lesser included offenses of assault and battery; (5) Kansas’ aggravated battery statute, K.S.A. 2011 Supp. 21-5413(b)(1)(B), is unconstitutionally vague; and (6) cumulative error denied him a fair trial.

ISSUES: (1) Sufficiency of the Evidence, (2) Mutually Exclusive Verdicts, (3) Jury Instruction - Aggravated Assault, (4) Jury Instruction - Lesser Included Offenses, (5) Constitutionality of Statute, (6) Cumulative Error

HELD: No authority supports argument that authority to enter is a property right tied to status of Williams’ residence. Aggravated burglary statute does not require State to prove (or disprove) a burglar’s residence. Whether Williams and the victim both had a property interest in the residence is a closer question because no direct evidence about property interests of the two parties, but there was circumstantial evidence the victim had to give permission for Williams to enter and that he recognized or acquiesced in victim’s right to exclude him. Sufficient evidence presented that Williams entered the house without authority.

Court of Appeals’ elements approach is a valid method for determining if verdicts are mutually exclusive. Under facts in case, Williams did not establish mutually exclusive verdicts.

District court did not err in setting out State’s claim that Williams used baseball bat as a deadly weapon. State v. Sutherland, 248 Kan. 96 (1991), and State v. Sisson, 302 Kan. 123 (2015), are reviewed. Here, district court did not explicitly state a baseball bat is a deadly weapon, but rather stated what the State had to prove. State v. Ingham (this day decided) is distinguished. District courts are cautioned in constructing this type of instruction.

District court erred in failing to instruct on assault and battery as lesser included offenses of aggravated assault and aggravated battery. Instructions on the lesser included offenses were legally appropriate, and under standard in State v. Haberlein, 296 Kan. 195 (2012), were factually appropriate. On facts in this case, however, no clear error.

K.S.A. 2011 Supp. 21-5413(b)(1)(B) is not unconstitutionally vague. Individuals of ordinary intelligence can understand what is meant by “can be inflicted” language. Court of Appeals’ reasoning in cases rejecting constitutional challenges to the statute is approved.

Cumulative effect of the two instructional errors did not deny Williams a fair trial.

CONCURRENCE (Rosen, J., joined by Nuss, C.J. and Stegall, J.): Agrees the convictions should be affirmed, but disagrees with majority’s opinion that district court was required to instruct jury on the lesser included offenses. Consistent with his concurring and dissenting opinions in cases relating to application of K.S.A. 22-3414(3), no error in not instructing jury on lesser included offenses of misdemeanor battery and misdemeanor assault.

CONCURRENCE (Johnson, J., joined by Beier, J.): Would hold the district court’s aggravated assault elements instruction was erroneous, but even if jury had been clearly told to find the baseball bat met the definition of a deadly weapon, the result would have been the same.

STATUTES: K.S.A. 2017 Supp. 20-3018(b), 22-3414(3), 60-261; K.S.A. 2011 Supp. 21-5109(b), -5412, -5413(b)(1)(B), -5414, -5414(c)(1), -5807(b); and K.S.A. 77-201, - 201, Twenty-third

Court of Appeals

Criminal

criminal procedure—probation—sentences—statutes
state v. jones
reno district court—vacated and remanded
No. 118,268—November 30, 3018

FACTS: Jones convicted of failing to register as a drug offender. Prison term imposed with a 24-month period of post-release supervision, and a dispositional departure for 36 months probation. Probation revoked in 2014. Revocation sentence pronounced from bench was 51-month prison term with no mention of post-release supervision, but journal entry of probation revocation ordered 85-month prison term with 24-months post-release supervision. Jones appealed. Court of Appeals ordered remand, finding the sentence effective when pronounced from the bench. On remand, district court filed journal entry nunc pro tunc ordering 51-month prison term with 24-month post-release supervision. Jones filed motion to correct an illegal sentence, arguing the post-release supervision term should be vacated. District court denied the motion. Jones appealed, arguing in part for first time that district court’s silence on the postrelease supervision term at the revocation hearing constituted a lawful modification of her sentence under K.S.A. 2017 Supp. 22-3716(b). Supplemental briefing ordered on what effect, if any, K.S.A. 2017 Sup. 21-6804(e)(2)(C) had on the appeal. 

ISSUE:  (1) Probation Revocation Sentence; (2) K.S.A. 2107 Supp. 21-6804(e)(2)(C)

HELD:  Based on State v. McKnight, 292 Kan. 776 (2011), State v. Sandoval, 308 Kan. 960 (2018), and State v. Roth, 308 Kan. 970 (2018), district court erred when it later included a 24-month post-release supervision term in the journal entry. Although the district court may not have intended to vacate the postrelease provision term upon revoking Jones’ probation, the court was authorized to do so and the new lawful sentence was effective when pronounced from the bench.

K.S.A. 2017 Supp. 21-6804(e)(2)(C) does not apply to a sentence that is lawfully modified at a probation revocation hearing under K.S.A. 2017 Supp. 22-3716(b) because a postrelease supervision term is not required by law as part of the sentence when the district court sentences a defendant anew after revoking probation. Here, the district court imposed a lawful lesser sentence of a 51-month prison term with no post-release supervision period. This sentence was effective when pronounced from the bench at the revocation hearing and cannot later be modified.

STATUTES:  K.S.A. 2017 Supp. 21-6804(e)(2)(C), -6805(e)(2)(C), 22-3504, -3716(b), -3716(d)(1)

Tags:  Attorney Discipline  Johnson District  Reno District  Rice District  Sedgwick District  Wyandotte District 

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October 26, 2018 Digests

Posted By Administration, Monday, October 29, 2018

Kansas Supreme Court

CIVIL

ESTOPPEL—INSURANCE
BECKER V. THE BAR PLAN MUTUAL INSURANCE COMPANY
JOHNSON DISTRICT COURT–Remanded
COURT OF APPEALS—REVERSED
NO. 113,291— OCTOBER 26, 2018

FACTS: Becker made a series of loans to a business and hired Seck and Associates, a law firm, to help him with that process. The business faced financial difficulties and Becker claimed that Seck failed to find that the business' collateral was already subject to a properly filed security interest. After the business failed and the owner sought bankruptcy protection, Becker initiated proceedings against Seck's malpractice insurance carrier. Becker asked the Bar Plan, Sack's insurer, for a policy limits settlement offer of $300,000. The Bar Plan denied Seck's claim for coverage, pointing to her failure to timely notify the insurance company about a pending claim. Seck confessed judgment in excess of $3 million and assigned to Becker any right to sue the Bar Plan. Becker did sue, claiming bad faith. But the district court granted summary judgment to the Bar Plan and the court of appeals affirmed. Becker's petition for review was granted.

ISSUE: (1) Reservation of rights and estoppel;

HELD: Both the district court and court of appeals erred by focusing on the "expansion of coverage" rule. The courts should have instead determined whether estoppel was appropriate under the reservation of rights rule. The Bar Plan could have satisfied its duty to defend while also preserving any defenses of noncoverage through a timely reservation of rights. In this case, there are genuine issues of material fact regarding whether Bar Plan timely reserved its rights. Accordingly, summary judgment was inappropriate and the case must be remanded for further findings of fact.

STATUTE: K.S.A. 60-256

criminal 

criminal procedure—motions—sentencing—statutes
state v. alford
sedgwick district court—affirmed
No. 117,270—october 26, 2018

FACTS: Alford was convicted in 1993 of first-degree murder, aggravated kidnapping, and unlawful possession of a firearm. State v. Alford, 257 Kan. 830 (1995). In 2016 he filed pro se motions to correct an illegal sentence. He claimed trial court violated K.S.A. 1993 Supp. 21-4624(3) by permitting sentencing jury to consider murder victim’s written statement regarding an earlier aggravated battery, which was improper hearsay testimony in violation of due process and right of confrontation. He also claimed jury was wrongly instructed it needed to reach a unanimous verdict on the hard 15 sentence in violation of K.S.A. 1993 Supp. 21-4524(5). District court summarily denied the motions. Alford appealed on both claims. 

ISSUE: Motion to correct an illegal sentence

HELD: Neither of Alford’s claims fits within the narrow definition of an illegal sentence, thus cannot be raised in a motion to correct an illegal sentence. Alford’s hearsay argument relies on K.S.A. 1993 Supp. 21-4624(3)—a subsection devoted to establishing evidentiary rules—which does not qualify as the relevant statutory provision implicating an illegal sentence. And Alford’s unanimity claim is defeated by State v. Allison, 306 Kan. 80 (2017).

STATUTES: K.S.A.  2017 Supp. 22-3631; K.S.A. 1993 Supp. 21-4624(3), -4624(5); K.S.A. 22-3414(3), -3504, -3504(1)

constitutional law—criminal procedure—evidence—juries—prosecutors
state v. williams
wyandotte district court—affirmed
No. 116,690—october 26, 2018

FACTS: William was convicted of first-degree premeditated murder and criminal possession of a firearm. On appeal he claimed: (1) prosecutor’s closing remarks improperly called William’s testimony a fabrication; (2) State’s peremptory strikes of two jurors, and trial court’s overruling William’s claim of racial discrimination, violated Williams’ rights under Batson v. Kentucky, 476 U.S. 79 (1986); (3) trial court erred in allowing overly gruesome autopsy photographs during testimony of State forensic pathologist; and (4) cumulative error denied him a fair trial.

ISSUES: (1) Prosecutorial misconduct, (2) Batson challenge, (3) gruesome photographs, (4) cumulative error

HELD: Under facts in this case, prosecutor’s comments about Williams’ trustworthiness were within proper bounds. In context, prosecutor was advancing reasonable inferences based on physical evidence which supported the suggestion that Williams’ testimony was unbelievable. 

Second and third steps in Batson challenge are discussed. Under circumstances in this case, trial court did not abuse its discretion by concluding the prosecutor had a valid, race-neutral reason to strike each juror.  

Autopsy photos in this case were graphically illustrative and unpleasant to view, but were not offered solely to inflame the jurors’ passions or prejudice.

Cumulative error claim is defeated by absence of any error. 

STATUTES: K.S.A. 2017 Supp. 21-5402, -6304, 22-3601(b)(4); K.S.A. 60-2101(b)

 

Tags:  113291  116690  117270  estoppel  insurance  Johnson District  Sedgwick District  Weekly10302018 

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September 18 and 21, 2018 Digests

Posted By Administration, Monday, September 24, 2018

Kansas Supreme Court

Attorney Discipline

ORDER OF DISBARMENT
IN RE MICHAEL P. PELOQUIN
NO. 19,846 — September 18, 2018

FACTS: In a letter dated September 13, 2018, Michael P. Peloquin voluntarily surrendered his license to practice law. At the time of surrender, a formal complaint was pending alleging violations of: KRPC 1.3 (diligence); 1.4 (communication); 1.16 (termination of representation; 3.2 (expediting litigation); 5.5 (unauthorized practice of law); 7.3 (client solicitation); and 8.4 (professional misconduct). There were also allegations that Peloquin violated Supreme Court Rule 218. The court accepted the surrender of Peloquin's license, and he is disbarred.

Civil

BREACH OF TRUST—DAMAGES
ELLIS LIVING TRUST V. ELLIS LIVING TRUST
SEDGWICK DISTRICT COURT—REVERSED and CASE REMANDED
COURT OF APPEALS—REVERSED
NO. 113,097—SEPTEMBER 21, 2018

FACTS: Alain Ellis and her husband, Dr. Harvey Ellis, both executed living trusts. After Alain died, Harvey served as trustee of Alain's trust. The terms of Alain's trust provided that all income went to Harvey during his life. Upon his death, the trust was to be divided equally between the Ellises' two sons, with each receiving income from the principal. While acting as trustee, Harvey improperly converted a substantial amount from Alain's trust and placed the converted assets into his own trust. After Harvey died, the improper transfers were discovered and over $1 million was returned to Alain's trust. Alain's trust and the trust beneficiaries sought additional damages and filed suit against Harvey's trust, Harvey's estate, and individuals who advised Harvey while he was still living. Before trial, the district court ruled that Alain's trust could not seek punitive damages from Harvey's estate because Harvey was deceased. It also concluded that Alain's trust was not entitled to recover double damages. Alain's trust appealed these rulings to the court of appeals, which affirmed the district court's rulings. Alain's petition for review was granted on these two issues.

ISSUES: (1) Punitive damages from a deceased trustee; (2) double damages

HELD: The question of whether a plaintiff can recover punitive damages from the estate of a deceased tortfeaser is an issue of first impression. The Kansas statutes are silent on this issue. But the statutes do provide that an estate can stand in the shoes of a deceased tortfeaser, especially because an estate exists to pay the financial obligations of the deceased. And a threat of punitive damages may serve to discourage wrongdoing by trustees. For these reasons, a trust may seek punitive damages from the estate of a deceased trustee. Since that issue was not put to a jury in this case, the case must be remanded. This rationale also allows for a plaintiff to seek statutory double damages against a trustee's estate because those damages are penal in nature and serve the same purpose as punitive damages.

STATUTE: K.S.A. 58a-1002, -1002(a), -1002(a)(3), -1002(c), 60-1801, -3702, -3702(a), -3702(c), -3702(d), -3703

STATUTE OF FRAUDS
DEWITTE INSURANCE AGENCY V. FINANCIAL ASSOCIATES MIDWEST
JOHNSON DISTRICT COURT—CASE REMANDED
COURT OF APPEALS — REVERSED
NO. 115,126—SEPTEMBER 21, 2018

FACTS: Three individuals worked for Financial Associates as area managers. These individuals trained new insurance agents and provided administrative support. As part of their compensation, the area managers received one percent of the premium paid on all policies from Blue Cross/Blue Shield of Kansas City. This compensation was due to them not only during their employment but after their employment ended, until the policies they had signed were no longer renewed. The payments were made for more than 20 years. After Financial Associates sold its agency to Blue Cross, Blue Cross stopped paying the area managers this one percent premium portion. After the area managers asked for the payment to be resumed and Blue Cross refused, the area managers filed suit claiming breach of contract. The district court decided in favor of Financial Associates, concluding that the area managers' contracts did not govern the one percent premium payment and that any oral agreement to make that payment was unenforceable under the statute of frauds. The Court of Appeals affirmed, and the area managers' petition for review was granted on the statute of frauds issue.

ISSUE: (1) Statute of frauds full-performance exception

HELD: The plain language of K.S.A. 33-106 does not include any exceptions to the statute of frauds. But the full-performance exception to the statute of frauds was developed in common law and recognized in Kansas shortly after statehood. The legislature's failure to change the statute shows that the legislature has acquiesced to the full-performance exception. In Kansas, the full-performance exception requires the full performance of only one party to an agreement. Because the area managers performed their part of the contract for over 20 years, the full-performance exception applies, and the alleged oral agreement is removed from the statute of frauds.

STATUTE: K.S.A. 33-106

Kansas Court of Appeals

Civil

ADMINISTRATIVE LAW—DUI
PEARSON V. DEPARTMENT OF REVENUE
WYANDOTTE DISTRICT COURT—REVERSED AND DISMISSED
NO. 118,696—SEPTEMBER 21, 2018

FACTS: Pearson was arrested and his breath test showed alcohol levels above the legal limit. After being served with a suspension notice, Pearson timely requested an administrative hearing with the Department of Revenue. Pearson appeared for the scheduled hearing but the arresting officer did not, and the hearing officer dismissed the suspension order. A few days later, the hearing officer learned that the officer had attempted to notify officials that he was hospitalized and would not be able to attend the hearing. After receiving that information, the hearing officer withdrew the dismissal order and set a new hearing date to consider Pearson's suspension. Pearson objected, but the hearing was held and a new hearing officer affirmed the suspension of Pearson's driver's license. After Pearson filed a petition for judicial review, the district court affirmed, finding that the hearing officer was a party to the proceedings and could withdraw the dismissal. Pearson appealed.

ISSUES: (1) Jurisdiction; (2) ability to withdraw an order

HELD: The order withdrawing the dismissal and setting the matter for a second hearing was not a final agency action. As such, Pearson could not have filed a petition for judicial review of that order. Pearson was allowed to appeal only at the conclusion of the second proceeding, where the new hearing officer affirmed the suspension of his driving privileges. There is no express or implicit statutory authority to allow a hearing officer to reconsider, grant a rehearing, or set aside an administrative suspension order after the order's effective date. The district court erred when it found that the hearing officer was a party to the action, giving her the authority to withdraw the order of dismissal. In the absence of a request for reconsideration, the hearing officer could not withdraw the order of dismissal and reinstate the proceedings against Pearson.

STATUTES: K.S.A. 2017 Supp. 8-259(a), -1002, -1002(a), -1002(f), -1020, -1020(d)(1), -1020(k), -1020(m), -1020(n), -1020(o), -1020(p), -1020(q), 77-621(a)(1); and K.S.A. 77-607(a), -607(b)(1), -607(b)(2)

Tags:  Attorney Discipline  Johnson District  Sedgwick District  Wyandotte District 

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April 28, 2017 Digests

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

Kansas Supreme Court

CRIMINAL

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

 

Kansas Court of Appeals

CIVIL

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

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

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

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

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

 

CRIMINAL

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

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

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

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

Controlling Kansas precedent defeats Carter’s Apprendi sentencing claim.

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

 

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

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

ISSUE: Classification of Prior Out-of-State Conviction

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

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

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

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

ISSUE: Motion to correct illegal sentence

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

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

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

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

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