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October 16, 2020 Digests

Posted By Administration, Monday, October 19, 2020

Kansas Supreme Court

Attorney Discipline

TWO-YEAR SUSPENSION
IN RE MARK D. MURPHY
NO. 122,036—OCTOBER 16, 2020

FACTS: A hearing panel determined that Murphy violated KRPC 1.1 (competence); 1.2(c) (scope of representation); 1.7 (conflict of interest); 2.1 (independent judgment); and 8.4(d) (conduct prejudicial to the administration of justice). The issues arose after Murphy represented both sides in a business transaction without informing his clients of the potential conflicts of interest and without learning that one party to the transaction had already filed for bankruptcy.

HEARING PANEL: The disciplinary administrator asked that Murphy be disbarred. This incident was part of a pattern of misconduct which resulted in minor discipline. Murphy was dishonest about his role in the proceedings and did so in an attempt to minimize his culpability. Based on the balance of the aggravating and mitigating circumstances, the hearing panel recommended that Murphy's license be suspended for one year.

HELD: Murphy filed several exceptions to the hearing panel report. But the evidence presented supports the hearing panel's findings by clear and convincing evidence, and some of Murphy's arguments mischaracterized the evidence. Murphy argued that the recommended discipline was excessive and that reprimand would be the appropriate discipline or, in the alternative, that he be allowed to serve a term of probation. Both the Disicplinary Administrator and the court found that Murphy failed to comply with the rules regarding probation and denied his request. After considering the evidence, the court concluded that a two-year suspension was the appropriate discipline. The second year of the suspension may be stayed if Murphy follows a probation plan which is approved by the Disciplinary Administrator's office.

criminal

appeals—constitutional law—criminal law—statutes
state v. dale
johnson district court—affirmed in part, reversed in part
court of appeals—affirmed
no. 117,162—october 16, 2020

FACTS: Jury convicted Dale of two counts of aggravated robbery and one count of theft. Dale appealed. Rejecting all grounds but for a jury instruction claim on aggravated robbery, Court of Appeals in unpublished opinion reversed the aggravated robbery conviction and remanded for a new trial on those two counts. On remand, Dale argued his conviction on lesser included crime of theft barred retrial on aggravated robbery counts. Alternatively on issue not raised in his appeal he argued the aggravated robbery counts were multiplicitous. District court convicted Dale on both aggravated robbery counts. Dale appealed. In unpublished opinion, Court of Appeals held Dale’s two aggravated robbery convictions were not multiplicitous, but reversed the theft conviction as multiplicitous with the aggravated robbery convictions. Dale’s petition for review granted. State did not cross-petition for review of panel’s determination that theft was a lesser included offense of aggravated robbery.

ISSUES: (1) Double jeopardy; (2) multiplicity

HELD: Neither the Double Jeopardy Clause nor K.S.A. 21-3107(2)(a) absolutely prevent the continued prosecution of some counts in a prosecution after a criminal defendant has been convicted on other counts. If the continued prosecution follows a defendant’s post-conviction appeal that sought a new trial and, on remand, a defendant is found guilty of a greater offense after a lesser included offense has been affirmed, a court may, absent application of one of a limited number of exceptions, vacate the sentence for the lesser included offense and impose a sentence for the greater offense. Here, Court of Appeals did not err in holding that Dale’s convictions for aggravated robbery would not result in a subsequent prosecution in violation of either a constitutional or statutory right to be free from double jeopardy.

            Under facts of case, Dale’s convictions for two counts of aggravated robbery were not multiplicitous even though they arose from one transaction that constituted unitary conduct because robbers, while armed with BB gun, took property in the possession or control of two individuals by force directed at both.

STATUTES: K.S.A. 2019 Supp. 21-5109; K.S.A. 21-3107, -3107(2), -3107(2)(a), -3108(4)(c), -3426,  -3427

appeals—attorney-client—criminal law—criminal procedure—motions
state v. herring
sedgwick district court—reversed; court of appeals—reversed
No. 118,648—october 16, 2020

FACTS: Herring pleaded no contest to robbery and aggravated assault. Prior to sentencing he filed motion to withdraw his plea, asserting claims of ineffective assistance of counsel. District court denied the motion applying the Strickland test to find Herring failed to satisfy the first factor in State v. Edgar, 281 Kan. 30 (2006). Herring appealed. In unpublished opinion, Court of Appeals found district court erred by using the Strickland test instead of the “lackluster advocacy” standard specified under State v. Aguilar, 290 Kan. 506 (2010), but affirmed the district court’s ruling because the error was harmless. Herring petitioned for review of panel’s application of harmless error.

ISSUE: Motion to withdraw plea—Ineffective assistance of counsel

HELD: District court’s improper use of the more stringent, constitutional Strickland standard when considering the first Edgar  factor is not amenable to harmless error analysis. Panel’s decision is reversed and case is remanded to district court with directions to reassess the first Edgar factor under the lackluster advocacy standard and then exercise its statutory discretion under K.S.A. 2019 Supp. 22-3210(d)(1).  

STATUTE: K.S.A. 2019 Supp. 22-3210(a), -3210(d), -3210(d)(1), -3210(d)(2)

 

Kansas Court of Appeals  

CIVIL

INSURANCE—REAL ESTATE
KRAUSE V. KERNS
JOHNSON DISTRICT COURT— AFFIRMED
NO. 121,842—OCTOBER 16, 2020

FACTS: The Kernses contracted to sell their house to Krause. The purchase contract contained several disclosures but did not mention any issues with water intrusion or the fireplace. After closing on the property, Krause discovered many issues with the property that were not included in the disclosure. Krause sued the Kernses for the misrepresentations or omissions included in the disclosure. The parties ended up settling; the Kernses stipulated to a final judgment of $79,482 in favor of Krause. As part of the agreement the Kernses agreed to assign their rights under their insurance policy to Krause. In return, Krause promised to only pursue collection of the judgment with the insurance company, not with the Kernses personally. Krause filed a garnishment action against the insurance company to recover the judgment amount. The insurance company filed a motion for summary judgment, arguing that the Kernses' insurance policy did not cover misrepresentation and so the company was not liable. The district court granted that motion, finding that policy coverage was triggered by an "occurrence" and that the failure to disclose was not an occurrence. Krause appeals.

ISSUES: (1) Whether coverage exists under the insurance policy

HELD: A threshold requirement of coverage under the insurance policy is the existence of an occurrence. The insurance policy clearly defines "occurrence" as an accident which results in bodily injury or property damage. The facts of this case do not show an occurrence. And even if Krause could prove an occurrence, the policy language which excludes coverage for a claim arising out of any written or oral statement clearly bars Krause's claim.

STATUTES: none

Tags:  Appeals  Attorney Discipline  Attorney-Client  Constitutional Law  Criminal Law  Criminal Procedure  Insurance  Johnson District Court  Motions  Real Estate  Sedgwick District Court  Statutes 

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October 9, 2020 Digests

Posted By Administration, Tuesday, October 13, 2020

Kansas Supreme Court 

CIVIL

CONSTITUTIONAL ISSUES—DUI
JARVIS V. KANSAS DEPARTMENT OF REVENUE
JOHNSON DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED
NO. 119,116—OCTOBER 9, 2020

FACTS: A law enforcement officer initiated a traffic stop after watching Jarvis drive. The officer noticed that Jarvis smelled of alcohol and had bloodshot eyes. After he performed poorly on field sobriety tests, Jarvis was arrested for driving under the influence. After receiving the DC-70 advisory, Jarvis refused to supply a blood or breath sample and his driver's license was suspended. Jarvis appealed and a hearing officer affirmed the suspension, so Jarvis petitioned for judicial review. The district court conducted an evidentiary hearing and relied on K.S.A. 2019 Supp. 8-1020(p) when concluding that the officer's testimony was not credible and that the officer lacked reasonable suspicion to justify the traffic stop. KDR appealed, and the Court of Appeals affirmed the district court. KDR's petition for review was granted.

ISSUES: (1) Application of K.S.A. 2019 Supp. 8-1020 to administrative suspension; (2) existence of reasonable suspicion

HELD: The 2016 amendments to K.S.A. 8-1020(p) allow a court to consider and determine constitutional issues, including the lawfulness of a law enforcement encounter. This is not just advisory language meant to guide law enforcement officers; the Kanas Judicial Review Act does not allow courts to issue advisory opinions. Instead, K.S.A. 2019 Supp. 8-1020(p) directs courts to consider and determine any constitutional issues. And setting aside the license suspension order is an appropriate remedy if the court determines that the law enforcement encounter was unlawful. A review of the record on appeal shows the district court correctly determined that law enforcement's stop of Jarvis lacked reasonable suspicion.

STATUTES: K.S.A. 2019 Supp. 8-259, -1020, -1020(h), -1020(o), -1020(p), -1020(q); K.S.A. 8-259, 77-617, -621, -622, -622(b)

DUI—INFORMED CONSENT
WHIGHAM V. KANSAS DEPARTMENT OF REVENUE
JOHNSON DISTRICT COURT—COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART—
DISTRICT COURT IS AFFIRMED IN PART AND REVERSED IN PART, CASE REMANDED
NO. 117,043—OCTOBER 9, 2020

FACTS: After receiving a tip, law enforcement found Whigham in his open garage, hunched over the steering wheel of his vehicle and smelling of alcohol. After he performed poorly on field sobriety tests, Whigham was arrested for driving under the influence. Officers gave the DC-70 implied consent form and Whigham refused to provide a breath sample. Whigham's driver's license was suspended and he petitioned for judicial review, challenging both the sufficiency of the implied consent advisory and the constitutionality of his encounter with law enforcement. Whigham did not believe officers had reasonable suspicion to believe that he operated a vehicle while under the influence, and he questioned whether officers could enter his garage without a warrant. The district court refused to consider the constitutional issues and found that officers had reasonable grounds to believe that Whigham operated a vehicle while under the influence. The Court of Appeals affirmed the district court, holding that the 2016 amendments to K.S.A. 8-1020(p) did not overrule the holding in Martin that the exclusionary rule cannot be used in driver's license suspension proceedings. Whigham's petition for review was granted.

ISSUES: (1) Effect of 2016 amendments on use of exclusionary rule; (2) sufficiency of implied consent advisory

HELD: On judicial review, K.S.A. 2019 Supp. 8-1020(p) allows a court to consider any constitutional issue, including the lawfulness of a law enforcement encounter. A court may set aside a driver's license suspension if a driver meets the burden of showing that the encounter was unlawful. The district court erred by not considering Whigham's constitutional arguments, and the case must be remanded for further proceedings. The implied consent advisory given to Whigham was sufficient.

STATUTES: K.S.A. 2019 Supp. 8-1020, -1020(p); K.S.A. 2015 Supp. 8-1001(k)

 

Kansas Court of Appeals

Civil

EIGHTH AMENDMENT—HABEAS CORPUS
WILLIAMS V. STATE
WYANDOTTE DISTRICT COURT—REVERSED AND REMANDED
NO. 121,815—OCTOBER 9, 2020

FACTS: When he was 14-years old, Ronnell Williams was convicted of two counts of premeditated first-degree murder. The district court imposed two hard-50 sentences, to be served concurrently. His conviction and sentence were affirmed on direct appeal. In 2005, Williams' first K.S.A. 60-1507 motion, which raised claims of ineffective assistance of counsel, was denied. In 2012, the United States Supreme Court concluded that the Eighth Amendment precludes a life sentence for a juvenile offender if the sentencing court does not have discretion to consider the offender's youth and personal characteristics. It was later clarified that this holding is retroactive. Williams filed a second K.S.A. 60-1507 motion arguing that the structure under which he was sentenced violated the Eighth Amendment, rendering his sentence unconstitutional. The district court rejected Williams' motion as untimely and successive and he appealed.

ISSUES: (1) Summary dismissal; (2) constitutionality of hard 50 sentence; (3) remedy; (4) lifetime post-release

HELD: The United States Supreme Court decisions in Miller and Montgomery are intervening changes in the law which constitute exceptional circumstances and justify a second 60-1507 motion. These decisions create the rare case of manifest injustice which justifies a second motion. Miller applies whether a sentence is mandatory or discretionary, so it makes no difference whether the district court used discretion when determining that the hard 50 sentence was justified by the aggravating circumstances present. Although Williams is not technically serving a life sentence, the hard-50 is a functional equivalent; in both cases, Williams lacks the possibility for release at a meaningful point in his life. Williams was denied the Eighth Amendment's protections when the district court failed to consider his youth, diminished culpability, and heightened capacity for change before imposing the hard-50 sentence. A sentencing court may impose a life sentence or a hard-50 sentence on a juvenile, but only after making individualized considerations about the offender. The remedy here is to remand the case to the district court to allow for a hearing on whether a hard-50 sentence is a constitutionally disproportionate punishment for Williams. The district court lacked authority to impose lifetime post-release and that portion of Williams' sentence must be vacated.

STATUTES: K.S.A. 2019 Supp. 21-6620; 22-3504(a), 60-1507, -1507(a), -1507(b), -1507(c), -1507(f); K.S.A. 1999 Supp. 21-4635(b), -4635(c), -4636; K.S.A. 60-1507

Tags:  constitutional issues  DUI  Eighth Amendment  habeas corpus  informed consent  Johnson District Court  Wyandotte District Court 

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July 31, 2020

Posted By Patti Van Slyke, Monday, August 3, 2020

Kansas Court of Appeals

Civil

JURISDICTION—MUNICIPALITIES—OFFENDER REGISTRATION
CITY OF SHAWNEE V. ADEM
JOHNSON DISTRICT COURT—AFFIRMED
NO. 121,328—JULY 31, 2020

FACTS: Adem was convicted of sexual battery in Shawnee Municipal Court and he filed a notice of appeal to the district court. A jury convicted him as charged in district court. As part of his sentence, Adem was required to register as a sex offender under the Kansas Offender Registration Act. He now appeals that finding.

ISSUES: (1) Appellate jurisdiction; (2) applicability of KORA to municipal court convictions;

HELD: The court has jurisdiction to consider Adem's appeal because KORA allows for appeals where registration has been triggered by district court findings. KORA acts in concert with, but not as part of, the Kansas Code of Criminal Procedure or other sentencing statutes. It is its own separate act with its own regulatory purposes. Adem is correct that there is no statute that specifically applies KORA to violations of municipal codes. But K.S.A. 22-4902(b)(7) defines a sex offender as any person who has been convicted of an offense that is "comparable" to one specifically enumerated in the Act. The municipal sexual battery act is identical to the state statute, and Adem was properly required to register under KORA.

STATUTES: K.S.A. 2018 Supp. 22-4902(b)(5), -4902(b)(7), -4902(t)(1); K.S.A. 2017 Supp. 22-3602, -3602(a); K.S.A. 2016 Supp. 21-5505(a); K.S.A. 22-2102, -2103; -3602, -3610(a), 46-1211(b)

CHILD SUPPORT—JURISDICTION
CHALMERS V. BURROUGH
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 121,108—JULY 31, 2020

FACTS: A Florida district court required Chalmers to pay Burrough child support to help care for their daughter. The support amount was based on Chalmers' income as a player for the Miami Heat basketball team. Chalmers retired from the team in 2018 and moved away from Florida. Burrough and the child are Kansas residents. After his employment changed, Chalmers wanted to modify his child support obligation. But he could not do so in Florida because he was no longer a Florida resident. In 2018, Chalmers filed a petition to register and modify the Florida order in Kansas under the Uniform Interstate Family Support Act (UIFSA). Burrough did not dispute Chalmers' attempt to register the judgment, even though he did not comply with UIFSA requirements by including copies of the Florida support order with the filing. The district court registered the Florida order in Kansas and later temporarily modified the support obligation as agreed to by the parties. Burrough then filed a motion to set aside, claiming that she never agreed to the terms. Chalmers also moved for permission to amend his petition to add the required copies of the Florida support order. Burrough countered with a motion to dismiss based on a lack of subject matter jurisdiction, arguing that the Florida support order was never properly registered because Chalmers did not comply with UIFSA requirements when registering the order. The district court agreed with Burrough and vacated its modification of the support order, finding that the presence of a certified copy of the Florida support order was fundamental to registering the order in Kansas. Chalmers appealed.

ISSUES: (1) Whether objection to jurisdiction was waived; (2) whether substantial compliance with UIFSA is adequate

HELD: Kansas only has jurisdiction to modify an out-of-state child support order if that order is first registered in this state. It is undisputed that Chalmers failed to attach to his registration petition two copies, including one certified copy, of his Florida order. Challenges to subject matter jurisdiction can be raised at any time, even outside of the 20-day window contemplated by UIFSA. A Kansas court has no authority to modify an out-of-state child support order until that order is properly registered in Kansas. Litigants are not expected to strictly comply with UIFSA requirements. But attachment of the Florida order was a critical component of the UIFSA registration requirements. The failure to attach two copies of the order meant that Chalmers did not substantially comply with UIFSA and the order was never properly registered in Kansas, divesting the district court of jurisdiction to modify it.

DISSENT: (Atcheson, J.) UIFSA's procedural requirements should not be equated with subject matter jurisdiction. The district court had jurisdiction to modify Chalmers' out-of-state child support order.

STATUTE: K.S.A. 2019 Supp. 23-36,204(b), -36,205, -36,602(a), -36,602(b), -36,603(a), -36,605, -36,606, -36,607, 36,609, -36,610, -36,611(a)

ATTORNEYS—CONSUMER PROTECTION
HERNANDEZ V. PISTOTNIK
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 120,228—JULY 31, 2020

FACTS: Yudi Hernandez was badly injured in an automobile accident at the age of 13. Yudi's older sister, Mirna, helped her family find an attorney to act on Yudi's behalf. A family friend recommended Brad Pistotnik based on Brad's television commercials. Yudi and her family had an initial consultation with Brian Pistotnik, and she retained the Pistotnik firm to represent her. The firm obtained settlement officers for policy limits from all involved parties. But Yudi's father fired the Pistotnik firm and hired Steven Brave to complete the settlement. Yudi received her settlement, but Brian sued her father to recover the costs and attorney fees that were detailed in an attorney fee lien. Yudi sued the Pistotnik firm, claiming they defrauded her under the Kansas Consumer Protection Act. Brad moved for summary judgment, claiming that there was no evidence of fraud and that Yudi was not an aggrieved party under the KCPA. The district court granted Brad's motion, and Yudi appealed.

ISSUES: (1) Applicability of the KCPA; (2) fraud claim; (3) viability of discovery requests; (4) transfer of venue

HELD: The KCPA does not define the term "aggrieved." But case law clarifies that in order to recover under the KCPA, Yudi must show that she was legally harmed and that her harm was causally connected to Brad's advertising. The filing of the attorney fee lien did not harm Yudi. And Yudi cannot show that she relied on any representations in Brad's advertisements when hiring the firmshe was in a medically-induced coma at the time and played no part in the decision of which firm to hire. The district court correctly found that Yudi cannot recover under the KCPA. When alleging fraud, the circumstances constituting fraud must be stated with particularity. Yudi failed to establish that she relied, either directly or indirectly, on any fraudulent representation by the Pistotniks. Complaints to the Kansas Disciplinary Administrator are not discoverable, and the district court did not err by refusing to require Brad or Brian to turn over such documents to Yudi. And settlement agreements which Yudi wanted to obtain in discovery were confidential, meaning the district court did not err by refusing to compel their discovery. The district court did not abuse its discretion by transferring venue to Sedgwick County, where the defendants were located and where all the legal work was completed.

STATUTES: K.S.A. 2019 Supp. 60-208(a), -209(b), -226, -2103(h); K.S.A. 50-623(b), -634(a), 60-609(a)

criminal

criminal procedure—probation—sentencing—statutes
state v. dunham
saline district court—affirmed in part, vacated in part, remanded
no. 121,081—july 31, 2020

FACTS: While on probation for drug crime convictions in two cases, Dunham committed additional crimes leading to three more cases, the last two committed while Dunham was on felony release status. Addressing all five cases the same day, district court revoked probation in Cases 1 and 2 and imposed consecutive prison sentences in the additional three cases, finding Kansas law required that sentences in Cases 4 and 5 run consecutive to each other and consecutive to Case 3. Dunham appealed claiming district court erred by concluding it lacked discretion to impose the last three sentences concurrently. He also claimed the district court abused its discretion by revoking probation, arguing drug treatment would better address his addiction.

ISSUES: (1) Multiple sentences; (2) probation revocation

HELD: District court erred in finding it had no discretion to impose Dunham’s sentences in Cases 3, 4, and 5 consecutive to each other. Law related to concurrent and consecutive sentencing in felony cases is examined including the interpretation of statutory language, the statutes and caselaw related to concurrent and consecutive sentences, and the application of applicable statutes to facts of Dunham’s case. Dunham had multiple sentences imposed on different cases on the same day, so this case is controlled by State v. Edwards, 252 Kan. 860 (1993), which interpreted the previous version of K.S.A. 2019 Supp. 21-6606(a) as allowing a court flexibility—regardless of sentence ordered in any individual case such as the consecutive prison term in Dunham’s Case 3 sentence—to run the sentences in multiple cases concurrently or consecutively as the court finds appropriate. District court’s order running the sentences consecutively is vacated and case is remanded for court to use its discretion in deciding whether the sentences in Cases 4 and 5 should be consecutive to or concurrent with each other and to Case 3.  

            District court did not act unreasonably by revoking Dunham’s probation. Facts support the district court’s conclusion that Dunham was no longer amenable to probation.    

STATUTES: K.S.A. 2019 Supp. 21-6601, -6604(f)(4), -6606(a), -6606(c), -6606(d), -6606(e); K.S.A. 2018 Supp. 22-3716(c)(8)(A); K.S.A. 2017 Supp. 21-6604(f)(4),  -6606(d); K.S.A. 1996 Supp. 21-4603d, -4720(a); K.S.A. 1992 Supp. 21-4608(1), -4608(3); K.S.A. 1984 Supp. 21-4608, -4608(2), -4608(4), -4608(5); K.S.A. 21-4608(a), -4608(c), 22- 2801, -2802, -2804

Tags:  attorneys  Author: Patti Van Slyke  child support  consumer protections  criminal procedure  Johnson District Court  jurisdiction  municipalities  offender registration  probation  Saline District Court  Sedgwick District Court  sentencing  statutes 

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June 19, 2020 Digests

Posted By Administration, Monday, June 22, 2020

Kansas Supreme Court

criminal

appeals—appellate procedure—criminal procedure—motions—sentencing
state v. mayes
johnson district court
court of appeals—dismissal of appeal is affirmed
no. 115,006—june 19, 2020

FACTS: Mayes appealed from district court’s denial of Mayes’ motion to correct an illegal sentence. State moved to dismiss the appeal as moot because Mayes had been released from prison. Court of Appeals in unpublished motion granted State’s motion and dismissed the appeal without reaching merits of Mayes’ illegal sentence claim. Mayes’s petition for review granted. In his petition, he argued in part his appeal was not moot because a corrected criminal history score will affect when he can legally possess a firearm.

ISSUE: (1) Mootness Doctrineexpiration of sentence

HELD: Court of appeals erroneously applied sweeping bright-line rule rejected in State v. Roat, 311 Kan. __ (this day decided), but dismissal of the appeal is affirmed. Mayes failed to preserve below his argument that his appeal was not moot because a decision regarding whether his sentence was illegal will affect when he can legally possess a firearm.

STATUTE: K.S.A. 2010 Supp. 21-3701, -3716

appeals—attorneys and clients—constitutional law—
criminal procedure—jurisdiction—motions—sentencing
state v. roat
sedgwick district court
court of appeals—dismissal of appeal is affirmed
no. 113,531—june 19, 2020

FACTS: Roat was sentenced in 2009 and 2012 using criminal history that classified his 1984 Kansas burglary conviction as a person felony. Alleging classification error in light of State v. Murdock, 299 Kan. 312 (2014), and State v. Dickey, 301 Kan. 1018 (2015), Roat filed motion to correct an illegal sentence, and appealed the district court’s denial of relief. While appeal was pending, State filed notice that Roat had satisfied both the prison and post-release supervision provisions of his sentences. Court of Appeals then ordered Roat to show cause why the appeal should not be dismissed as moot. Roat argued his sentence could impact future sentences, and he might want to pursue a legal malpractice claim against trial attorney for not raising Murdock and Dickey issues at sentencing. Court of Appeals dismissed the appeal in unpublished opinion, holding the expiration of Roat’s sentence meant the outcome of the appeal would have no effect on his sentence in this case. Roat’s petition for review granted.

ISSUE: (1) Mootness Doctrineexpiration of sentence

HELD: Historical basis and application of the mootness doctrine is examined, including Kansas cases approaching mootness as jurisdictional or as discretional policy-based, and the constitutional, jurisdictional concept of mootness in federal cases. Consideration of mootness as a prudential doctrine is held to be the better approach. Bright line rule that renders a sentencing appeal necessarily moot if the sentence is completed is rejected. Instead, a determination of mootness must include an analysis of whether an appellate judgment on the merits would have meaningful consequences for any purpose, including future implications. In this case, State established a prima facie showing of mootness by demonstrating that Roat had fully completed the terms and conditions of his sentence, but Roat failed to demonstrate a vital or substantial right requiring a judgment in this appeal. A legal malpractice claim cannot be grounded on an attorney’s failure to make arguments for a change in the law, even if such a change later takes place, and mere stigma or “rightness” is insufficient to justify continuing to exercise jurisdiction over an appeal. Panel’s summary dismissal of the appeal without application of well-established principle in State v. Montgomery, 295 Kan. 837 (2012), and no reference to Roat’s asserted collateral rights, was erroneous but it arrived at the correct conclusion. Judgment of court of appeals is affirmed, subject to identified reservations. Court notes the 2019 amendment of K.S.A. 22-3504 does not directly invoke or demonstrate mootness of motions, such as Roat’s, that were filed before the amendment.

CONCURRENCE (Biles, J.): Concurs in the result based on rationale stated in State v. Tracy, 311 Kan. __ (this day decided).

CONCURRENCE (Stegall, J.): Joins Justice Biles’ concurrence, but states disagreement with portion of majority opinion that appear to abandon or weaken the constitutional requirement that Kansas courts decide only cases and controversies. Suggests standing (rather than mootness) is the better legal doctrine for future courts to focus on.

STATUTES: K.S.A. 2019 Supp. 22-3504(a), -3504(d), 60-2102(a); K.S.A. 2018 Supp. 21-6813, -6814; K.S.A. 22-3504

appeals—appellate procedure—attorneys and clients—motions
state v. sykes
sedgwick district court
court of appeals—dismissal of appeal is affirmed
no. 113,903—june 19, 2020

FACTS: Sykes appealed the district court’s denial of his motion to correct an illegal sentence based on calculation of Sykes’s criminal history. State moved to dismiss the appeal as moot because Sykes had completed his sentence. Sykes filed no response. Court of appeals granted State’s motion and dismissed the appeal. Sykes petitioned for review, arguing his appeal was not moot because a hypothetical future sentencing court might take judicial notice of Sykes’s criminal history score, and a successful appeal might preserve a legal malpractice claim against his trial counsel.

ISSUE: Mootness doctrineexpiration of sentence

HELD: Panel erred to the extent it considered Sykes’ claim moot based solely on the completion of his sentence, but dismissal of the appeal is affirmed because Sykes failed to challenge the State’s motion for involuntary dismissal of the case as moot.

STATUTES: None

appeals—attorneys and clients—criminal procedure—motions—sentencing
state v. tracy
sedgwick district court
COURT OF APPEALS—dismissal of appeal is affirmed
no. 113,763—june 19, 2020

FACTS: District court revoked Tracy’s probation and denied motion to correct an illegal sentence in which Tracy challenged the classification of his 1974 Colorado burglary conviction as a person offense. In unpublished opinion Court of Appeals held the Colorado conviction was properly classified. Tracy’s petition for review granted but held in abeyance pending resolution of other appeals with related issues. After Tracy fully served his prison sentence and applicable period of postrelease supervision, State argued Tracy’s appeal was moot.

ISSUE: Mootness doctrineexpiration of sentence

HELD: The appeal is moot. No merit to Tracy’s speculative claim that a future sentencing court will feel obligated to follow the panel’s uncorrected ruling and again classify the 1974 Colorado conviction as a person felony. By failing to provide any detail about what he might assert as a basis for the alleged legal malpractice he might want to file, Tracy waived this argument. And under current Kansas caselaw, no merit to Tracy’s claim that the uncorrected panel’s decision could have an impact on other defendants in other cases.

CONCURRENCE (Rosen, J.)(joined by Nuss, C.J. and Malone, J.): Concurs in the result based on rationale expressed in State v. Roat, 311 Kan. __ (this day decided).

STATUTE: K.S.A. 2019 Supp. 21-6813, -6814(c)

appeals—criminal procedure—motions—postconviction relief—sentencing
state v. ward
franklin district court
court of appeals—dismissal of appeal is reversed, case remanded
no. 116,545—june 19, 2020

FACTS: Ward filed motion to correct an illegal sentence, and under K.S.A. 60-1507 to allege district court erred when it revoked Ward’s probation and imposed the underlying sentence. District court summarily denied the motion. Noting that Ward had completed his sentence, Court of Appeals ordered Ward to show cause why the case should not be dismissed as moot under State v. Montgomery, 295 Kan. 837 (2012). In response Ward argued in part that a finding he violated the terms of his probation could be used to deny him probation or subject him to a future upward departure sentence. Panel dismissed the appeal as moot in an unpublished opinion. Ward’s petition for review of panel’s dismissal granted.

ISSUE: (1) Mootness Doctrine—expiration of sentence

HELD: Ward correctly distinguishes Montgomery because he challenges the probation revocation, not just the sanction. Case is remanded to Court of Appeals to reconsider under guidance provided in State v. Roat, 311 Kan. __ (this day decided), the arguments Ward presented in his response to the show cause order.

DISSENT (Biles, J.)(joined by Luckert, C.J. and Stegall, J.): Dissents from remand order based on rationale expressed in State v. Tracy, 311 Kan. __ (this day decided). Case should be dismissed.

STATUTE: K.S.A. 60-1507

appeals—criminal procedure—evidence—sentencing
state v. Yazell
johnson district court
court of appeals—dismissal of appeal is reversed, case is remanded
no. 116,761—june 19, 2020

FACTS: Yazell appealed from revocation of probation following his out-of-state arrest. When State submitted evidence from Kansas Adult Supervised Population Electronic Repository (KASPER) showing Yazell had been released from custody, court of appeals ordered Yazell to show cause why the appeal should not be dismissed as moot. In response Yazell challenged the evidence the State submitted to the appellate courts to show Yazell had competed his sentence, and argued his case was not moot because a finding he violated probation could be used as evidence he is not amenable to probation in future cases. Court of appeals summarily dismissed the appeal as moot. Yazell’s petition for review granted.

ISSUES: (1) Appellate factual findings; (2) mootness doctrineexpiration of sentence

HELD: The reasoned approach by Kansas appellate courts to date has been to reject basing appellate decisions on KASPER and similar documentation. Because KASPER is unreliable evidence, courts may not rely on it to make factual findings. Court of appeals erred to the extent it relied on KASPER and State’s hearsay assertions about a Corrections employee confirming the accuracy of the KASPER report. Panel’s decision is reversed and case is remanded to court of appeals.

            If panel on remand should again find that Yazell has completed his sentence, it should reconsider whether his case is moot under guidance provided in State v. Roat, 311 Kan. __ (this day decided).

STATUTE: K.S.A. 60-409(a)

 

Kansas Court of Appeals

Civil

FAMILY SETTLEMENT AGREEMENT
SCHMITENDORF V. TAYLOR
DOUGLAS DISTRICT COURT—AFFIRMED
NO. 120,123—JUNE 19, 2020

FACTS: Schmitendorf and Taylor were both cousins of Vera Park. In 1993, Park created a revocable trust, designating Park as the trustee. In the event of Park's death, Schmitendorf was to receive 20 percent of the trust estate unless the primary beneficiary predeceased Park, in which case Schmitendorf would receive all the trust estate. After the primary beneficiary died, Park amended the trust so that Schmitendorf and Taylor would evenly split the trust assets. Schmitendorf remained the sole trustee; in that capacity, she used trust assets to purchase a home and made a substantial gift to a community group to establish an endowment in Park's name. Taylor was concerned about Schmitendorf's use of trust assets, and a protracted dispute arose over the trust, a guardian for Park, and alleged financial misappropriation. Ultimately, Schmitendorf and Taylor agreed on terms for a Family Settlement Agreement. The district court approved the Family Settlement Agreement and appointed Schmitendorf and Taylor as co-guardians for Park. Park died in 2016 and Schmitendorf filed a petition contesting the amendment to the trust which established Taylor as a co-equal beneficiary. Taylor sought summary judgment, claiming that all Schmitendorf's claims were controlled by the Family Settlement Agreement. The district court agreed, and Schmitendorf appealed.

ISSUE: (1) Whether dispute is controlled by Family Settlement Agreement

HELD: Kansas law favors the settlement of disputes and family settlement agreements are liberally construed and should not be disturbed without good reason. The plain language of this Family Settlement Agreement clearly determines the parties' interests and their intent to settle all disputes relating to the distribution of trust assets. Under the plain language of the Family Settlement Agreement, Schmitendorf is barred from asserting any claims for relief.

STATUTES: K.S.A. 2019 Supp. 60-256(c)(2); K.S.A. 59-102(8)

Tags:  appeals  appellate procedure  attorneys and clients  constitutional law  criminal procedure  Douglas District Court  Family Settlement Agreement  Franklin District Court  Johnson District Court  jurisdiction  motions  post-conviction relief  Sedgwick District Court  sentencing 

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May 29, 2020 Digests

Posted By Administration, Monday, June 1, 2020

Kansas Supreme Court

criminal 

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

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

ISSUE: Post-sentencing motion to withdraw plea

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

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

 

Kansas Court of Appeals

criminal

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

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

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

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

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

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

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

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May 22, 2020 Digests

Posted By Administration, Tuesday, May 26, 2020

Kansas Court of Appeals

criminal

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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January 10, 2020 Digests

Posted By Administration, Monday, January 13, 2020
Updated: Monday, January 13, 2020

Kansas Supreme Court

criminal 

appeals—constitutional law—criminal law—evidence—statutes
state v. jenkins
shawnee district court—affirmed
no. 118,120—january 10, 2020

FACTS: Jenkins led police on two car chases that resulted in a fatal crash. Jury convicted him of crimes including first-degree felony murder and fleeing and eluding police. Over Jenkins’ objection, district judge allowed State to introduce recordings of five calls Jenkins made while in jail using his personal identification number (PIN), finding the State sufficiently established Jenkins’ identity as one of the speakers. On appeal, Jenkins claimed the district court erred by admitting the recordings of the jail calls, arguing reliance on his PIN was insufficient to establish he was the male speaker. He also challenged the constitutionality of K.S.A. 8-1568(b)(1)(E), the option within a means of the felony fleeing and eluding statute dependent on five or more moving violations.

ISSUES: (1) Admission of jail calls; (2) constitutionality of K.S.A. 8-1568(b)(1)(E)

HELD:  Court examined cases from other jurisdictions and concluded the seven-factor test for authenticating an audio recording outlined in State v. Williams, 235 Kan. 485 (1984), is no longer controlling in Kansas. Audio recordings qualify as writings under the Kansas Rules of Evidence. On record in this case, and under current Rules and cases interpreting them, district judge did not abuse his discretion by admitting the recorded calls as evidence. State proffered evidence upon which a reasonable juror could conclude that Jenkins made the recorded calls: strong circumstantial evidence that Jenkins was the caller by use of his unique PIN, supported by the content and timing of the calls.

Claim that the term “moving violations” in Kansas felony fleeing and eluding statute is unconstitutionally vague, which Jenkins raised first time on appeal, is considered, finding the statute is not unconstitutionally vague. Jenkins’ reliance on State v. Richardson, 290 Kan. 176 (2010), is criticized. Conduct underlying each of the moving violations used to convict Jenkins of fleeing and eluding and felony murder is clearly prohibited by Kansas law, and plain language of the defining statutory and regulatory provisions is clear. Jenkins’ argument for application of the rule of lenity is rejected.

STATUTES: K.S.A. 2015 Supp. 8-234b(d), -249(b), -1568(b)(1)(B), -1568(b)(1)(C), -1568(b)(1)(D), –1568(b)(1)(E), -1568(b)(2), 66-1,108(f); K.S.A. 8-262, -1508(c), -1519,  -1522(a), -1528(b), -1545, -1548,  60-401 et seq., 401(m), -404, -464, 66-1,108a

appeals—constitutional law—criminal procedure—jury instructions—statutes
state v. patterson
johnson district court—affirmed
no.118,180—january 10, 2020

FACTS: Patterson was convicted of crimes arising from an armed robbery in which a victim was killed by an accomplice. On appeal he claimed: (1) his felony-murder conviction violated due process because a jury was not required to determine he possessed a particular criminal mental state; (2) district court’s instructions and prosecutor’s voir dire comments improperly prevented jury from exercising its nullification power; (3) his hard 25 life sentence for felony murder is disproportionate to his crime in violation of Kansas and United States constitutions; and (4) use of prior convictions to elevate his sentence violated Sixth Amendment rights under Apprendi.

ISSUES: (1) Felony-murder conviction; (2) instructing jury to apply the law; (3) prosecutor’s voir dire; (4) hard 25 life sentence; (5) Apprendi challenge

HELD: Constitutional challenge to felony-murder statute, raised by Patterson for first time on appeal, is considered. Felony-murder statute, K.S.A. 2018 Supp. 21-5402(a)(2), does not operate as an unconstitutional conclusive presumption that invades the jury’s province. Intent to kill is not an element of felony murder. The statute expressly requires proof the defendant engaged in dangerous, felonious conduct and that a death occurred as a result of that conduct. By codifying participation in the felony as a statutory alternative for the intent and premeditation otherwise required for a first-degree murder conviction, the statute imposes a rule of law. It does not remove from jury’s consideration an intent element required by a criminal statute.

No merit to Patterson’s claim that district court’s instruction undermined the jury’s nullification power. District court’s instruction that jury had a “duty” to follow the law as set out in the instructions and that it “should find the defendant guilty” if State proved all elements of the charged offenses, was legally correct.

No merit to Patterson’s claim of error in prosecutor’s voir dire comment. It is not a misstatement of law to tell the jury to follow the law as given in the instructions.

Patterson did not show why his case is an exception to the general rule that case-specific challenges to § 9 of Kansas Constitution may not be raised for first time appeal. And his claim that a hard 25 life sentence is unconstitutional for a class of offenders (19-year olds) given the nature of his offense (those convicted of felony murder for a killing committed by another), fails to frame a valid categorical challenge to Eighth Amendment. The hard 25 life sentence is not categorically disproportionate as applied to young adults convicted of felony murder. Patterson’s reliance on Graham v. Florida, 560 U.S. 48 (2010), is misplaced.

Patterson’s Apprendi claim has been repeatedly rejected and is summarily dismissed.

STATUTES: K.S.A. 2018 Supp. 21-5202, -5202(a), -5202(d), -5402, -5402(a), -5402(a)(1), -5402(a)(2), -5402(b), 22- 3601(b)(3), -3601(b)(4) K.S.A. 21-3201 (Ensley)

criminal procedure—evidence—judges—statutes—witnesses
state v. lyman
geary district court—affirmed
no. 114,312 —january 10, 2020

FACTS: Lyman was convicted of felony murder based on abuse of a child, abuse of a child by shaking, and aggravated battery. After Lyman filed his appeal, defense counsel was served with disclosure of potentially exculpatory evidence that prosecutor recalled seeing a family resembling Lyman and victim with his family in a store, and that the woman had acted aggressively toward one of the children. Lyman filed motion for new trial on this newly discovered evidence. He also requested a change of judge for post trial matters, alleging the judge had been sleeping during trial. District court held hearing and concluded the prosecutor’s recollection was not corroborated and too speculative to warrant a new trial. On appeal Lyman claimed district court erred by: (1) denying the motion for new trial; (2) excluding Lyman’s proposed expert witness (Young) for failing to satisfy test under Daubert, (3) allowing State to admit photos as evidence of Lyman’s prior bad acts; (4) sleeping during the trial; and (5) prohibiting Lyman from introducing medical records that were subject to a written stipulation. He also claimed cumulative error denied him a fair trial.

ISSUES: (1) Motion for new trial; (2) expert witness; (3) evidence of prior bad acts; (4) judicial misconduct; (5) stipulated medical records; (6) cumulative error

HELD: District court did not abuse its discretion by finding the newly discovered evidence was not of such materiality that it would likely produce a different result upon retrial. Lyman’s further argument for a Brady violation fails because the evidence was not credibly exculpatory or impeaching.

Extended discussion of “Young’s postulate,” an inferential test Young had developed and used to base all his testimony and opinions in this case. District court did not abuse its discretion by excluding Young’s testimony for failure to satisfy test in Daubert, finding Young’s inferential test was contrary to fundamental tenets of Kansas evidence law, Young’s opinions were developed for purposes of testifying for defendants charged with child abuse, and that another Kansas trial court had found Young was not credible and his medical testimony was not worthy of any belief. Court rejects Lyman’s invitation to separate Young’s opinions reached from using the inferential test from those that were not.

Under facts in case, evidence documenting prior assault of a child sufficient to visibly distress him and leave bruises constitutes other crime evidence under K.S.A. 2018 Supp. 60-455. For evidence so similar to medical observations and conclusions at issue it is reasonable to conclude the same individual committed both the prior acts and those claimed in this case. It is relevant to show the defendant's modus operandi, a disputed material fact, and is probative because it contradicts the defendant's claim that previous health issues and not the defendant caused the child's death. District court did not abuse its discretion in finding the probative value of this evidence outweighed its prejudicial effect.

Lyman’s motion for change of judge did not satisfy affidavit requirement in K.S.A. 20-4111d, and motion also fails on the merits.

Parties stipulated to the admissibility of medical records that form the basis of opinion of people for purposes of their direct and cross-examination. District court did not abuse its discretion by refusing to admit the medical records because the expert witness would not be testifying.

No errors support Lyman’s cumulative error claim.

STATUTES: K.S.A. 2018 Supp. 22-3501(1), 60-455, -455(a), -455(b), -456(b); K.S.A. 20-311d, -311d(b), 22-3501, 60-401(b), -455, -456(b)

Kansas Court of Appeals

CIVIL

EMPLOYMENT—LEGISLATORS—VICARIOUS LIABILITY
LONG V. HOUSER
CHEROKEE DISTRICT COURT—AFFIRMED
NO. 120,866—JANUARY 10, 2020

FACTS: In 2017, Houser was a state representative for the State of Kansas. His job duties required that he be in Topeka during the legislative session. The state provided Houser with a per diem for lodging and meals, plus travel expenses. After the Legislature recessed for a break, Houser spent the night in Topeka and then got in his personal vehicle to return home. During the trip, Houser crossed the center line and hit Long's car, injuring him. Long sued both Houser and the State. The State sought summary judgment, arguing that it was not liable for Long's injuries because Houser was not acting within the scope of his employment while he was traveling home from Topeka. The district court agreed, and Long appealed.

ISSUE: (1) Whether Houser was acting within the scope of his employment at the time of the accident

HELD: Vicarious liability is the idea that the losses caused by an employee's tortious conduct are passed on to the employer as a cost of doing business. Vicarious liability only exists if the employee was acting within the scope of their employment at the time the tortious activity occurred. Although it has not been used in a tort context, the "going and coming rule" applies to third-party tort liability claims as a gauge to determine whether vicarious liability exists. The facts of the case make it clear that Houser was not acting within the scope of his employment at the time of the accident. This is true even though the State reimbursed Houser for travel costs.

STATUTE: K.S.A. 2018 Supp. 75-3203(a), -3202(b), -3203(e), -6103(a)

criminal 

appeals—constitutional law—criminal law—evidence—fourth amendment—motions 
state v. daino
johnson district court—reversed and remanded
no. 120,824—january 10, 2020

FACTS: Uniformed officers responded to report of marijuana odor coming from unit in apartment complex. Daino opened door 8-10 inches and officer asked if it was OK to step in to write ticket for marijuana. Daino did not verbally respond, but opened the door further and stood out of the way. Once officers discovered evidence of significant drug activity, Daino signed consent form for search of apartment but for roommate’s room. Drug charges filed. Daino filed motion to suppress, alleging illegal search in violation of Fourth Amendment. District court granted the motion, finding any reasonable person would have construed Daino’s response to indicate consent for officers to enter the apartment, but under Kansas law implied consent was not valid. State filed interlocutory appeal. On appeal Daino challenged sufficiency of the evidence of district court’s credibility finding regarding officer’s testimony.

ISSUES: (1) Cross-appeal; (2) consent to search

HELD: Sole issue on appeal is whether Daino’s consent for officers to enter apartment and investigate was invalid because it was implied. Daino filed no cross-appeal from district court’s adverse ruling, thus cannot challenge the sufficiency of the evidence or the district court’s credibility finding.

District court’s factual findings are supported by substantial competent evidence, but its legal conclusion that Kansas law requires express, verbal consent is erroneous. While it is well established law that mere acquiescence to a claim of lawful authority is inadequate to show voluntary consent, no Kansas Supreme Court case holds that consent must be verbal to be valid. Application of “mere acquiescence” rule by Court of Appeals panels, and subsequent Kansas Supreme Court cases, are examined and factually distinguished. Federal court cases upholding implied consent to enter a residence also are cited. Here, uncontested facts show that Daino yielded right of way to officers by his nonverbal, affirmative communication. Totality of circumstances shows that he unequivocally, specifically, freely, and intelligently consented to officers entering his residence to investigate smell of marijuana.

DISSENT (Buser, J.): Under totality of circumstances, would find Daino did not unequivocally, specifically, and freely and intelligently consent to officer’s entry into the apartment. Officer’s statements to Daino were misleading, and insufficiently informed Daino of officer’s purpose in seeking entry into the apartment or of Daino’s constitutional right to refuse entry. A reasonable person would understand that Daino was silently acquiescing to officer’s claim of lawful authority to enter the apartment because officer knew there was marijuana inside and was required to issue a citation. Would affirm district court’s suppression of evidence due to Fourth Amendment violation.  

STATUTE: K.S.A. 2018 Supp. 60- 2103(h); K.S.A. 21-5709(b)(1), 65-4105(d)(17), -4107(d)(1)

appeals—contempt—criminal procedure—evidence—witnesses
state v. lamb (towner)
shawnee district court—affirmed
No. 117,861—january 10, 2020

FACTS: Lamb charged with murder of victim in car Towner was driving, and with attempted murder of Towner. For Lamb’s preliminary hearing, Lamb and Towner had been transported to courthouse together and placed in same holding cell. When called to testify and identify Lamb as the shooter, Towner refused to testify. District court held Towner in contempt and ordered confinement. Charges against Lamb were dismissed. Towner appealed the court’s order of  direct criminal contempt, arguing he was threatened into not testifying and district court erred by not holding an in camera hearing, without Lamb present, so Towner could explain why he was not testifying. State asserted the appeal was moot because Towner had completed his six-month sentence for contempt, and failed to preserve his issue for appeal.

ISSUES: (1) Mootness of the appeal; (2) preservation of issue on appeal; (3) contempt

HELD: State v. Flanagan, 19 Kan. App. 2d 528 (1994), is distinguished as a contempt citation is not a criminal conviction and does not appear on a defendant’s criminal history. But mootness doctrine does not prevent the appeal because issue may be subject to repetition.

Panel proceeds on the merits notwithstanding close call whether Towner properly preserved his claim that there was insufficient evidence to find him in contempt because judge disregarded information from prosecutor that Towner was under duress and did not provide Towner a safe environment to set forth his defense.

District court’s decision finding Towner in direct criminal contempt is affirmed. A judge has no duty to sua sponte hold an in camera hearing to determine if a witness is fearful to testify when the witness makes no such request. Towner failed to make a proffer of the evidence he wanted the court to consider, and the three federal cases he cited do not support his position. A judge has no independent responsibility to seek out evidence of duress from a recalcitrant witness.

STATUTES: K.S.A. 2018 Supp. 21-5107(a), -5206; K.S.A. 60-405

appeals—criminal procedure—jurisdiction—motions—sentences—statutes
state v. mccroy
reno district court—appeal dismissed
No. 120,783—january 10, 2020

FACTS: District court sanctioned McCroy with second 180-day prison term after he violated terms of probation. State did not file motion to correct the order and instead appealed, arguing the second sanction was an illegal sentence because Kansas law only contemplates one 180-day sanction. McCroy contends there is no jurisdiction to consider State’s appeal which was not authorized by K.S.A. 22-3602 or any other appellate jurisdiction statute.

ISSUE: Appellate jurisdiction

HELD: K.S.A. 22-3504, governing post trial motions including motion to correct an illegal sentence, is not an appellate jurisdiction statute and does not vest an appellate court with jurisdiction to consider an appeal by the State solely on the claim that a sentence is illegal. Instead, an appellate court’s jurisdiction in a criminal case must arise from one of the limited procedural postures set forth in K.S.A. 22-3602. Different conclusion summarily reached in State v. Scherzer, 254 Kan. 926 (1994), but the sweeping jurisdictional statement in Scherzer no longer reflects the state of Kansas law. Appellate court’s jurisdiction is limited to those situations authorized by statute. State did not present its argument as a question reserved under K.S.A. 22-3602(b)(3), and panel makes no finding as to whether State’s general concerns regarding a second 180-day sanction could be raised in that context.

STATUTES: K.S.A. 2018 Supp. 21-6820, 22-3501(1), -3502, -3504(1), -3602(a), -3602(b), -3602(f), -3716; K.S.A. 22-3504, -3504(a), -3601, -3602, -3602(b), -3602(b)(3), -3603, 60-1507, -2101, -2101(a), -2101(b)

Tags:  Appeals  Cherokee District Court  Constitutional Law  Contempt  Criminal Law  Criminal Procedure  Employment  Evidence  Fourth Amendment  Geary District Court  Johnson District Court  Judges  Jury Instructions  Legislators  Motions  Shawnee District Court  Statutes  Vicarious Liability  Witnesses 

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December 13, 2019 Digests

Posted By Administration, Monday, December 16, 2019

Kansas Supreme Court

Criminal 

attorneys—constitutional law—criminal law—
evidence—jury instructions—statutes
State v. Harris
Lyon district court—affirmed; court of appeals—affirmed
No. 112,883—December 13, 2019

FACTS: Harris held victim for two hours, repeatedly forcing her to move from room to room within small apartment while demanding money. Jury convicted him of robbery, kidnapping, and criminal threat. Harris appealed on claims of trial errors and ineffective assistance of counsel. Case remanded for Van Cleave hearing, with no relief granted. In unpublished opinion, Court of appeals affirmed, rejecting the ineffective assistance claim, and finding two trial errors which were harmless both individually and collectively. Review granted on adequately briefed issues. Harris claimed insufficient evidence supported the kidnapping conviction and reasserted his claims of cumulative error and ineffective assistance of counsel. For first time on appeal, he claimed district court erred in failing to instruct on criminal restraint as a lesser included offense and failing to give unanimity instruction for kidnapping and robbery.

ISSUES: (1) Sufficiency of evidence—kidnapping; (2) jury instructions—lesser included offense; (3) jury instructions—unanimity; (4) cumulative error; (5) ineffective assistance of counsel

HELD: Forcing victim from room-to room within one-bedroom apartment constitutes a taking or confinement within kidnapping statute’s meaning under State v. Bugs, 219 Kan. 203 (1976), and Harris’ movements were not merely incidental to the robbery. No substantive basis for Harris’ claim that his two-hour holding of the victim was part of one continuous effort to get the victim’s money. Pursuant to State v. Haberlein, 296 Kan. 195 (2012), panel correctly rejected Harris’ alternative means claim that evidence failed to show he held victim with intent to facilitate flight.

State conceded a lesser included instruction was factually and legally appropriate, but panel correctly found no clear error on facts in this case.

Unanimity instruction on the kidnapping count would not have been appropriate because all of Harris’ actions were part of one unitary conduct. And no unanimity instruction was necessary on robbery count because State elected one of the two acts that could separately constitute the alleged robbery.

No reversal on cumulative effect of district court’s error of instructing on criminal restraint as an alternative crime rather than a lesser included offense, and omitting the specific crime the kidnapping was meant to facilitate.

Van Cleave court found counsel’s failure to challenge the sufficiency of the charging document within 14 days after trial deprived Harris of the more-strict standard of review under State v. Hall, 246 Kan. 728 (1990), but no prejudice occurred under the “post-Hall” common-sense rule. Panel affirmed on the prejudice prong, applying State v. Dunn, 304 Kan. 773 (2016), which overruled Hall. But issue for appellate review was not the charging document’s sufficiency but whether Harris’ opportunity for a hearing under the pre-Hall standard was squandered. Following Ferguson v. State, 276 Kan. 428 (2003), the common-sense rule applies and record shows Harris suffered no prejudice.

STATUTES: K.S.A. 2018 Supp 21-5408, -5408(a), -5408(a)(2), -5420(a), 22-3201(b) -3414(3), -3502; K.S.A. 2015 Supp. 60-261 

Kansas Court of Appeals

Civil

CONSUMER PROTECTIONCONTRACTSFORUM SELECTION
KANSAS CITY GRILL CLEANERS, LLC V. THE BBQ CLEANER, LLC
JOHNSON DISTRICT COURT
REVERSED AND REMANDED
NO. 118,687
DECEMBER 13, 2019

FACTS: Kansas City Grill Cleaners, LLC, and The BBQ Cleaner, LLC entered a contract for the purchase of outdoor grill cleaning equipment and supplies. The purchase agreement contained choice-of-law and forum-selection clauses which established that venue would exist only in Bergen County, New Jersey. In August 2016, KC Grill filed suit in Johnson County against BBQ Cleaner alleging a deceptive trade practice claim under the Kansas Consumer Protection Act. Relying on the forum-selection clause, BBQ Cleaner filed a motion to dismiss. The district court granted the motion, citing the forum-selection clause. KC Grill appealed.

ISSUE: (1) Enforcement of forum-selection clause

HELD: A forum-selection clause is unenforceable if the party resisting it shows that enforcement would be unreasonable under the circumstances. The KCPA contains a venue statute which is designed to allow Kansas consumers with certain prerogatives in prosecuting a consumer protection claim. A plain reading of that statute makes it clear the legislature intended to allow Kansas consumers to file suit against non-resident companies in Kansas. The district court erred when it found the forum-selection clause in this contract was enforceable.

STATUTE: K.S.A. 50-623(b), -625, -625(a), -625(c), -638(b)

DRIVER'S LICENSE SUSPENSION
MOLINA V. KANSAS DEPARTMENT OF REVENUE
FORD DISTRICT COURT
AFFIRMED
NO. 119,766
DECEMBER 13, 2019

FACTS: Deputy Scott stopped Molina after he was seen failing to maintain a single lane and changing lanes without signaling. After the stop, the officer noticed that Molina smelled like alcohol and had slurred speech. Molina failed a series of field sobriety tests and his preliminary breath test. Molina was arrested and transported to the sheriff's office, where personnel administered the Intoxilyzer 9000 breath test after waiting the prescribed 20 minutes. Molina's sample showed an alcohol level far exceeding the allowable amount, and Molina was given notice that his driving privileges were being suspended. Molina requested an administrative hearing and then review by the district court, claiming that Deputy Scott failed to substantially comply with the Intoxilyzer testing protocol. At the district court hearing, Molina's counsel failed to subpoena Deputy Scott, so there was no testimony regarding compliance with the testing protocol. Nevertheless, Molina argued that his Intoxilyzer results were flawed because Deputy Scott did not wait the required 20 minutes before administering the test. The district court disagreed, and Molina appealed.

ISSUE: (1) Compliance with testing procedure

HELD: Substantial compliance is sufficient to satisfy the 20-minute wait requirement. There is absolutely no evidence to support Molina's claim that his waiting period was improperly cut short. Molina failed to meet his burden to prove error. Moreover, substantial evidence proves that more than 20 minutes elapsed from the start of the waiting period to when Molina actually performed the test. The district court correctly rejected Molina's claims to the contrary.

STATUTE: K.S.A. 2018 Supp. 8-259(a), -1020(h)(2)(F), -1020(q), 77-603(a), -621(a)(1), -621(c)(7), -621(d)

Tags:  attorneys  constitutional law  consumer protection  contracts  criminal law  driver's license suspension  evidence  Ford District Court  forum selection  Johnson District Court  jury instructions  Lyon District Court  statutes  Weekly20191217 

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December 6, 2019 Digests

Posted By Administration, Monday, December 9, 2019

Kansas Supreme Court

 

Attorney Discipline

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

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

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

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

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

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

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

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

Court Reporter Discipline

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

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

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

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

Civil

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

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

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

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

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

criminal 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ISSUE: (1) Statue of limitations—excusable neglect

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

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

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

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

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

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

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

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

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

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

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

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

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October 18, 2019 Digests

Posted By Administration, Monday, October 21, 2019

Kansas Court of Appeals

Civil

CHILD IN NEED OF CARE
IN RE D.H.
ELLIS DISTRICT COURT—REVERSED AND REMANDED
NO. 121,131—OCTOBER 18, 2019

FACTS: D.H. was born in December 2007. Mother and Father were not married and their relationship ended soon after D.H. was born. When D.H. was an infant, the State alleged that D.H. was a child in need of care. In a companion paternity case, Father's paternity was legally established. Father used that paternity case to seek residency and parenting time decisions for D.H. After a hearing, Father was given primary residency of D.H., with Mother having parenting time once per week. Soon after this hearing, Mother moved out of state. She delivered a son shortly after that, who was later diagnosed with autism. Mother sought and received services for this child, and also sought and received financial and residential stability for herself. For the next six years, Mother spoke on the phone with D.H., but did not actually visit in person. Mother finally had a personal visit with D.H. in 2017. Father died by suicide in 2018. Because of his death, D.H. was placed in protective custody and later sent to live with her paternal grandfather. The State filed a CINC petition. Mother traveled to personally appear at the temporary custody hearing. After hearing evidence, the district court found that D.H. was a CINC because Mother abandoned her. Mother appealed.

ISSUES: (1) Relevant time period; (2) sufficiency of the evidence

HELD: The district court found that Mother abandoned D.H. in 2009, meaning that D.H. was without adequate parental control at the time of the CINC hearing. The plain language of the statute does not require the district court to make its adjudication decision based only on the circumstances that exist on the day of the adjudication hearing. Rather, the district court's decision should be guided by the temporal language used in the relevant statutory subsection that is being considered. There was insufficient evidence presented that D.H. was in need of care.

STATUTE: K.S.A. 2018 Supp. 38-2202, -2202(a), -2202(d), -2250, -2251

JURY INSTRUCTIONS—SEXUALLY VIOLENT PREDATORS
IN RE CARE AND TREATMENT OF QUILLEN
JOHNSON DISTRICT COURT—VACATED AND REMANDED
NO. 120,184—OCTOBER 18, 2019

FACTS: Richard Quillen was committed as a sexually violent predator in 2006. As part of his civil commitment, Quillen was entitled to an annual review hearing. In 2013, Quillen asked for a jury trial when he challenged the Kansas Department for Aging and Disability Services' recommendation that he remain in custody. That request was granted, and after a hearing the jury found that the State met its burden to prove that Quillen did not meet the criteria for transitional release. Quillen sought a new trial, claiming the district court violated his due process rights by failing to instruct the jury on "serious difficulty controlling behavior" as a separate element that the State must prove. The district court denied the motion and Quillen appealed.

ISSUE: (1) Jury instructions

HELD: Quillen questioned whether the elements required to prove a committed person is not safe to be sent to transitional release are the same as those required to initially commit an individual. They are. Despite statutory changes and a consent decree, Quillen correctly notes that the State is constitutionally required to prove that Quillen would have serious difficulty controlling his behavior if transitionally released. The district court erred by not adding that essential element to the jury instructions, and the error was prejudicial. Quillen is entitled to a new trial.

STATUTE: K.S.A. 2018 Supp. 59-29a02(a), -29a07(a), -29a08, -29a08(a), -29a08(c), -29a08(d), -29a08(g)

Tags:  CINC  Ellis District Court  Johnson District Court  Sexually violent predators 

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