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January 19, 2018 Digests

Posted By Administration, Tuesday, January 23, 2018
Updated: Monday, January 22, 2018

Kansas Supreme Court

Attorney Discipline

No. 22,228—JANUARY 16, 2018

FACTS: In a letter signed December 29, 2017, Theodore R. Hoefle voluntarily surrendered his license to practice law. At the time of surrender, a disciplinary complaint was pending against Hoefle. The complaint alleged that Hoefle violated Kansas Rule of Professional Conduct 8.4 (misconduct) by failing to correct a false insurance claim and failing to correct false information in a police report.

HELD: The court found that the surrender should be accepted. Hoefle is disbarred.


appeals—appellate procedure—attorney and client—habeas corpus—jurisdiction—postconviction remedies
mundy v. state
lyon district court—affirmed; court of appeals—affirmed
No. 112,131—january 19, 2018

FACTS: Mundy was found guilty of making a false claim to the Medicaid program and obstructing a Medicaid fraud investigation. Sentence imposed included a suspended prison term, probation, and payment of restitution and costs. While on probation Mundy filed a pro se 60-1507 motion, alleging, in part, ineffective assistance of trial attorney. District court appointed counsel. After reviewing the record, the district court summarily denied the 60-1507 motion, finding Mundy failed to show that trial counsel’s representation was not objectively reasonable, and that Mundy failed to plead sufficient facts for an evidentiary hearing. 60-1507 counsel filed notice of appeal. Appellate counsel appointed. Mundy argued, in part, that her release from probation did not deprive courts of jurisdiction, that 60-1507 counsel was ineffective by filing only a bare notice of appeal, and that district court’s summary denial of the 60-1507 motion denied her due process by not following procedural options in Lujan v. State, 270 Kan. 163 (2000). In an unpublished opinion, the Court of Appeals agreed that Mundy’s release from probation did not deprive courts of jurisdiction, found no jurisdiction to consider claim raised for first time on appeal that 60-1507 counsel was ineffective because issue was not included in the notice of appeal, and affirmed the district court’s summary denial of the 60-1507 motion. Mundy’s petition for review was granted.

ISSUES: (1) Jurisdiction, (2) notice of appeal, (3) ineffective assistance of 60-1507 counsel, (4) adjudication of a 60-1507 motion

HELD: Issue of first impression for Kansas Supreme Court. A Kansas court obtains jurisdiction over a 60-1507 motion if it is filed while a movant is in custody, and jurisdiction is not lost if the movant’s custody ends before judgment on the motion becomes final. Adopting the standard applied in habeas context, Mundy’s release from probation did not render her appeal moot because she still faced obligation to pay restitution and costs.

Court of Appeals erred in concluding it lacked jurisdiction to determine Mundy’s ineffective assistance of 60-1507 counsel claim. Panel’s approach effectively took away the availability of a proceeding under State v. Van Cleave, 239 Kan. 117 (1986). A notice of appeal stating the appeal is being taken from trial court’s decisions is sufficiently broad to give an appellate court jurisdiction to hear a claim that counsel appointed to handle 60-1507 proceeding was ineffective, even when the claim is raised for first time on appeal.

The claim of ineffective assistance of 60-1507 counsel is not reached or decided. Mundy was entitled to effective assistance of 60-1507 appointed counsel, but the record is insufficient to resolve that issue. Mundy never requested a Van Cleave remand and Supreme Court declines to sua sponte order a remand in this case.

K.S.A 2016 Supp. 60-1507 and Kansas Supreme Court Rule 183 are interpreted. Nothing in Lujan prevents a district court from concluding without a hearing—even after counsel has been appointed - that the motions, files, and records of a case conclusively show that the movant is entitled to no relief. In this case, Mundy’s 60-1507 motion did not merit an evidentiary hearing and the district court did not err in summarily dismissing the motion.  

STATUTES: K.S.A. 2016 Supp. 60-1507, -1507(a), -1507(b), -2103, -2103(b); and K.S.A. 21-3846(a)(1), -3849, 22-4506(b), 60-2101(b)

Tags:  appellate procedure  Attorney Discipline  disbarment  habeas corpus  Lyon  Lyon District  postconviction remedies 

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December 15, 2017 Digests

Posted By Administration, Monday, December 18, 2017

Kansas Supreme Court


constitutional law—criminal procedures—statutes
state v. amos
wyandotte district court—affirmed
No. 115,925—december 15, 2017

FACTS: Amos’ 1999 convictions of first-degree murder and conspiracy to commit aggravated robbery were affirmed on direct appeal. In 2015, he filed a motion to correct an illegal sentence, seeking relief under 2014 Kansas decisions and under 2013 legislation (now codified at K.S.A. 2016 Supp. 21-6620) enacted in response to Alleyne v. United States, 570 U.S. 99 (2013), to require jury findings before an enhanced mandatory minimum sentence can be imposed for first-degree murder. District court summarily denied the motion. Amos appealed, arguing for the first time that K.S.A. 2016 Supp. 21-6620(f), which makes the 2013 amendment inapplicable to sentences that were final before June 17, 2013, violates the Equal Protection Clause.

ISSUE: Motion to correct illegal sentence

HELD: A claim that a sentence is illegal because it violates the constitution cannot be brought via K.S.A. 22-3504(1). Nor can a K.S.A. 22-3504(1) motion to correct an illegal sentence serve as the procedural vehicle for attacking the constitutionality of K.S.A. 2016 Supp. 21-6620(f). Impact of 2017 amendment of K.S.A. 22-3504 is not considered in this case.

STATUTES: K.S.A. 2016 Supp. 21-6620, -6620(f); K.S.A. 22-3504(1)


constitutional law—criminal procedure—sentencing
state v. campbell
sedgwick district court—affirmed
No. 114,814—december 15, 2017

FACTS: Campbell was convicted in 1996 of first-degree murder and multiple crimes. In calculating criminal history for application of the Kansas Sentencing Guidelines Act (KSGA), district court classified several of Campbell’s out-of-state convictions as person felonies. In 2015, Campbell filed motion to correct an illegal sentence, citing State v. Murdock, 299 Kan. 312 (2014). District court summarily denied relief, refusing to apply Murdock retroactively. Murdock was later overruled by State v. Keel, 302 Kan. 560 (2015). Campbell appealed claiming: (1) his sentence was illegal under Murdock; (2) application of Keel to Campbell’s motion violated the Ex Post Facto Clause; (3) KSGA’s person/nonperson classification of pre-KSGA offenses violates the Sixth Amendment; and (4) summary denial of his motion denied him his right under K.S.A. 22-3504(1) to a hearing. Appeal transferred to the Kansas Supreme Court.

ISSUES: (1) Classification of out-of-state convictions, (2) Ex Post Facto Clause, (3) Sixth Amendment, (4) summary denial

HELD: Campbell was not entitled to have his out-of-state convictions classified as nonperson offenses under Murdock which was overruled by Keel, and is not entitled to relief under holding in Keel. Impact of 2017 amendment of K.S.A. 22-3504 is not addressed.

Application of Keel in this case does not violate the Ex Post Facto Clause. The 1993 statutes interpreted in Keel were in effect when Campbell committed crimes in 1996. They are not laws that increased the potential punishment after Campbell’s crimes were committed.

Holding in State v. Collier, 306 Kan. 521 (2017), defeats Campbell’s Sixth Amendment claim.

Campbell mistakenly relies on 2017 amendment to K.S.A. 22-3504 which was not effective until after Campbell’s hearing. Under law that applied at the time of Campbell’s hearing, he had no right to be present for the court’s preliminary review or to demand a hearing at which he could be present.

STATUTES:  K.S.A. 2016 Supp. 21-6810(d), -6810(e), 22-3601(b)(3); K.S.A. 1993 Supp. 21-4710; K.S.A. 21-4711, 22-3504, -3504(1)


criminal procedure—juries—prosecutors—sentencing
state v. hilt
johnson district court—affirmed
No. 114,682—december 15, 2017

FACTS: Hilt was convicted of first-degree murder. Conviction affirmed, but hard-50 sentence vacated and remanded for resentencing in accord with Alleyne v. United States, 570 U.S. 99 (2013). On remand, district court replaced a juror who had consulted a high school yearbook in violation of the court’s repeated admonitions, and was not forthright when questioned. District court imposed hard-50 sentence pursuant to jury’s verdict. Hilt appealed claiming: (1) district court’s removal of the juror during deliberation was error because the juror was not doing internet research on the case, and the juror’s failure to be forthright was not a proper basis for dismissal; (2) prosector erred during closing argument by telling jury that its role was to determine whether Hilt would get hard 50 sentence or be eligible for parole in 25 years, and telling jury it did not have to determine which blows to the victim were inflicted by Hilt and which were inflicted by co-defendants; and (3) the district court’s pronouncement of sentence was illegal and violated his right to be present at sentencing

ISSUES: (1) Removal of juror, (2) prosecutorial error, (3) pronouncement of sentence

HELD: No abuse of district court’s discretion to remove and replace a juror. Under facts in case, juror who consulted the yearbook violated the judge’s admonitions to do no investigation of any matter outside the courtroom. Judge’s express skepticism of the juror’s honesty was not an independent basis for removal and replacement.

Statutory subsections governing Hilt’s crime made a hard-50 sentence mandatory once a jury found beyond a reasonable doubt that an aggravating circumstance existed that was not outweighed by any applicable mitigating circumstances. District judge had no discretion to deviate from the jury’s hard-50 verdict, and prosecutor did not misstate the law. Nor did prosecutor misstate the law by telling jurors they could vote for hard-50 sentence even if State did not prove which co-defendant inflicted specific blows or wounds.

District judge’s statements in open court, that appropriateness of imposing the hard-50 sentence was the jury’s decision which the court was going to follow and impose, did not create an illegal ambiguity in the length of Hilt’s sentence or violate his right to be present at sentencing.

STATUTES: K.S.A. 2016 Supp. 21-6620(c), -6620(d), -6620(e), -6620(e)(1), -6620(e)(5), -6623, -6624(f), -6625, -6625(a), -6625(a)(4), 22-3405, -3412(c); K.S.A. 2013 Supp. 21-6620, -6624;  K.S.A. 22-3424, -3504(3)


crimes and punishment—criminal procedure—juries—sentencing
state v. ruiz-ascencio
lyon district court—convictions affirmed—sentence vacated in part— remanded
No. 115,343—december 15, 2017

FACTS: Ruiz-Ascencio was convicted of attempted first-degree murder, first-degree murder, aggravated assault, and illegal use of a communication facility. District court imposed hard-25 sentence for first-degree murder, prison terms for the other three offenses, and lifetime post-release supervision on all four counts. Ruiz-Ascencio appealed claiming the district court: (1) erred by not instructing jury on voluntary manslaughter for the first-degree murder and attempted first-degree murder charges because both victims were shot during a sudden quarrel; and (2) imposed an illegal sentence by ordering lifetime post-release supervision on each count.

ISSUES: (1) Jury instructions, (2) sentencing

HELD: Kansas cases are reviewed. Under facts in this case, a voluntary manslaughter instruction was not factually appropriate. No facts or reasonable inferences that can be drawn therefrom to suggest a sudden quarrel, or that Ruiz-Ascencio otherwise acted in a heat of passion. One victim’s words or gestures were not enough to constitute legally sufficient provocation.

State concedes error in sentencing. Judgment imposing lifetime post-release supervision on all four counts is vacated as contrary to K.S.A. 2016 Supp. 22-3717. Remanded for resentencing.   

CONCURRENCE (Johnson, J.): Concurs in the result.

STATUTES: K.S.A. 2016 Supp. 21-5404(1), 22-3717, -3717(b)(2)(C), -3717(d)(1)(A), -3717(d)(1)(C); K.S.A. 21-5404, 22-3504

Kansas Court of Appeals


NO. 116,578—DECEMBER 15, 2017

FACTS: Triple D Auto Parts purchased its store in 1990. At that time, the building's exterior had not changed since its construction in 1925. One feature of the exterior was a step down from the entrance/exit door to the sidewalk. Bonnette, who was a regular customer, fell when leaving the store and badly broke her wrist. Although she had navigated the step on dozens of occasions, she alleged that she fell because she could not see the step. Bonnette filed suit against Triple D, claiming negligence. Triple D responded by claiming that it was protected by the statute of repose. The district court granted Triple D's motion for summary judgment on those grounds, and this appeal followed.

ISSUES: (1) Applicability of the statute of repose; (2) duty to warn

HELD: The facts show that Triple D failed to warn Bonnette about the dangerous step. Because the duty to warn is an ongoing duty, that duty was breached on the day Bonnette was injured. This ongoing duty prevents application of the statute of repose.  But, Bonnette had actual knowledge of the step, and the danger was open and obvious. There is no evidence that Bonnette was distracted when leaving the store. Because Triple D did not have a duty to warn it is entitled to judgment as a matter of law.

STATUTES: K.S.A. 60-513, -513(b)

Tags:  constitutional law  criminal procedure  Hamilton  juries  limitations of actions  Lyon  procedures  prosecutors  Sedgwick  sentencing  statutes  torts  Wyandotte 

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August 4, 2017 Digests

Posted By Administration, Monday, August 7, 2017

Kansas Supreme Court


NO. 111,599—AUGUST 4, 2017

FACTS: While working for BNSF, Bullock slipped and was injured after stepping in diesel fuel. It was later determined that the fuel was spilled by one of Bullock's co-workers. Bullock sued BNSF and BNSF claimed the affirmative defense that Bullock was contributorily negligent for failing to appreciate the danger posed by the diesel fuel. Evidence at trial showed that Bullock was not disciplined for his conduct but that the employee who caused the spill was disciplined. The jury found BNSF 100 percent at fault. After BNSF appealed, the Court of Appeals found that evidence of the other employee's discipline was a subsequent remedial measure barred by K.S.A. 60-451, and that court ordered the matter remanded for a new trial. Bullock's petition for review was granted.

ISSUES: (1) Use of post-accident employee discipline as evidence; (2) counsel's statements during closing argument

HELD: The post-accident discipline of another employee constitutes a subsequent remedial measure and is barred from introduction by K.S.A. 60-451. This is true even if a party attempts to use evidence of subsequent remedial measures to prove causation or defeat a claim of contributory negligence. But evidence of an employer's post-event investigation is admissible under that same statute. A jury should not be instructed to act on their feelings about what is fair or to be concerned with community standards or community conscience. Counsel's remarks during closing argument were inappropriate.

STATUTE: K.S.A. 60-451, 3701(d)(1)


NO. 113,409—AUGUST 4, 2017

FACTS: Jones and a co-defendant were convicted of killing a man by injecting him with a lethal amount of methamphetamine. Jones appealed two issues to the Kansas Supreme Court.

ISUES: (1) Admission of forensic test results; (2) admission of out-of-court statements

HELD: The lab's chief toxicologist interpreted data to determine that there were high levels of methamphetamine present in the decedent's blood. From that information, the coroner determined that the victim died from methamphetamine toxicity. The coroner testified at trial about the toxicology results and what they meant, and the toxicologist testified about the results of the laboratory tests. Even if the person who actually performed the testing did not testify, any error stemming from that fact is harmless. The issue of whether evidence was properly admitted under the co-conspirator exception to the hearsay rule was not preserved for appeal.

STATUTE: K.S.A. 2016 Supp. 60-460, -460(i)(2)


NO. 110,520—AUGUST 4, 2017

FACTS: Meredith pled no contest to a drug crime in 2009. At the time he committed the offense, the Kansas Offender Registration Act (KORA) required Meredith to register as an offender for 10 years. But mistakes in both the sentencing procedure and the journal entry made it unclear how long Meredith's registration period was to run. After Meredith's probation was revoked, the district court noted that the current statute required a 15-year registration period and that sentence was imposed. Meredith appealed and the Court of Appeals affirmed, finding that KORA does not violate the Ex Post Facto Clause. Meredith's petition for review was granted.

ISSUE: Retroactive application of KORA

HELD: The legislature intended KORA to be a non-punitive civil regulatory scheme for all offenders. The record on appeal does not show any evidence that registration is punitive for drug offenders. Since the registration requirement is not a punishment, it cannot be an Ex Post Facto violation.

DISSENT: (Beier, J., joined by Rosen and Johnson, JJ.) KORA constitutes punishment even if that was not the legislature's intent.  

STATUTES: United States Constitution Article I, § 10; K.S.A. 2011 Supp. 22-4906(a); K.S.A. 2008 Supp. 65-4161(a)


NO. 110,277—AUGUST 4, 2017

FACTS: Reed was convicted of a sex crime and, as a result, was required to register as a sex offender for 10 years. Reed stipulated that for a period of time during that 10 years, he did not comply with registration requirements. Before Reed's registration period expired, the legislature amended the Kansas Offender Registration Act (KORA) and added a tolling period for periods of registrant noncompliance or incarceration. When he was convicted for registration violations, Reed claimed that he could not be convicted because his registration period had expired prior to being charged. After his conviction, Reed appealed, claiming that the tolling provision added by the legislature could not be applied to him without violating the Ex Post Facto Clause of the United States Constitution. The Court of Appeals affirmed the district court, finding that the amendments to KORA were not punitive. Reed's petition for review was granted.

ISSUE: Retroactive application of KORA amendments

HELD: The court has jurisdiction to hear this statutory argument even though it was not raised below. Registration under KORA for sex offenders is not punishment, so retroactive application of any provision cannot violate the Ex Post Facto Clause.

DISSENT: (Johnson, J., joined by Beier and Rosen, JJ.) KORA is punitive in effect rendering this an Ex Post Facto Violation.

STATUTES: K.S.A. 2016 Supp. 22-3210(d)(2), -3210(e)(2); K.S.A. 1994 Supp. 22-4902(b)(3), -4906(a); K.S.A. 22-4906(a)


NO. 114,417—AUGUST 4, 2017

FACTS: Sean was convicted of first-degree premeditated murder and other serious felonies after he allegedly killed a man by injecting him with a lethal amount of methamphetamine. Most of the state's evidence was provided by codefendants. Sean appealed.

ISSUES: (1) Suppression of interrogation statements; (2) prosecutorial misconduct; (3) erroneous admission of bad acts evidence; (4) erroneous admission of hearsay statements; (5) motion for mistrial; (6) limitation on cross-examination; (7) improper sympathy evidence; (8) cumulative error

HELD: The court cannot and will not reach the merits of Sean's argument about his custodial statements because his attorney did not properly preserve this issue for appeal. The introduction of evidence about drugs did not violate the order in limine. Comments about Sean's retention of an attorney were beyond the latitude afforded to prosecutors, but the error was not so prejudicial as to require reversal. The prosecutor's comment on a witness' testimony was a fair comment on facts in evidence and not inappropriate commentary on that witness' credibility. The issue of prior bad acts evidence is not properly before the court due to the lack of a contemporaneous objection. Several of the statements about which Sean now complains are not hearsay. The other statements might have been hearsay, but their admission was harmless. Testimony about gang affiliation was a passing comment by a witness and not a deliberate violation of a pretrial order. And while that testimony was a fundamental failure of the proceedings, the district court did not abuse its discretion by deciding that any resulting prejudice could be mitigated. The subject matter that was excluded during cross-examination offered no substantive or exculpatory evidence and was consequently not wrongly excluded. The court will not review any claim of error regarding testimony of the victim's mother because the issue was not preserved for appeal by a contemporaneous objection. Sean was not prejudiced by cumulative error.

STATUTES: K.S.A. 2016 Supp. 60-261, -455, -460, -460(j); K.S.A. 22-3423(1)(c), 60-404, -2105

Kansas Court of Appeals


NO. 116,921—AUGUST 4, 2017

FACTS: Mainland filed a petition against Tonya Smith after she allegedly wrote a bad check. Smith did not respond to the petition and Mainland received a default judgment. Mainland tried to collect on that judgment for 10 years but was apparently unable to locate Smith. After finally tracking her down, Mainland received an order of garnishment and served Diversicare, who Mainland believed was Smith's employer. Diversicare did not answer the order of garnishment and Mainland sought judgment against Diversicare for lack of compliance. At this point Diversicare sought permission to file an out-of-time answer, claiming that it never received the original garnishment order and that it had never employed Smith. The district court ultimately denied this motion and ordered Diversicare to pay the judgment plus costs.

ISSUE: Ability to garnish

HELD: Diversicare failed to answer the order of garnishment, but it is undisputed that Mainland released Diversicare from the order of garnishment. In the absence of any garnishment order there is nothing upon which to enter default judgment against Diversicare, and the district court erred by entering judgment against Diversicare.

STATUTES: K.S.A. 2016 Supp. 61-3003(g), -3504(a), -3504(b), -3507, -3507(a), -3507(b), -3508, -3510; K.S.A. 61-3502, -3514


NO. 116,422—AUGUST 4, 2017

FACTS: D.H., Jr. caught the attention of state officials shortly after his birth, when it was suggested that Mother used methamphetamine during her pregnancy. As the child's life progressed, there was a series of contacts with the police over drug use and domestic violence, and the family had no stability in housing or employment. D.J., Jr. finally came in to custody after both parents were incarcerated. After their parental rights were terminated, both parents appealed.

ISSUES: (1) Sufficient evidence to terminate father's rights; (2) sufficient evidence to terminate mother's rights; (3) ineffective assistance of counsel; (4) compliance with ICWA requirements

HELD: Father did not make sufficient efforts to regain custody of his child. His continued positive drug tests were a primary cause of this. There was sufficient evidence that Father's rights should have been terminated. Mother was similarly situated. She had a long history of drug abuse and instability. In addition, mother was subject to statutory presumptions of unfitness. Mother's first attorney has been disbarred, and the record shows that his representation of mother fell below minimum standards. But that representation came early in the case, and the two other lawyers who were appointed for mother ably represented her. Providing information to a tribe is mandatory under ICWA. When the tribe requested more information the state had an obligation to provide it. The case must be remanded so that an attempt can be made to provide missing information to the tribe.

STATUTES: 25 U.S.C. § 1903(4); K.S.A. 2016 Supp. 38-2269(a), -2269(b), -2269(c), -2269(f), -2269(g)(1), -2271(a)(1), -2271(a)(3), -2271(b)

Tags:  Lyon  Meade  Riley  Sedgwick  Wyandotte 

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