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May 31, 2019 Digests

Posted By Administration, Monday, June 3, 2019

Kansas Supreme Court

Attorney Discipline

ORDER OF DISBARMENT
IN THE MATTER OF PAMELA J. THOMPSON
NO. 120,818—MAY 31, 2019

FACTS: A hearing panel found that Thompson violated KRPC 1.15 (safekeeping property); 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation); 8.4(d) (engaging in conduct prejudicial to the administration of justice). The allegations arose after Thompson hired Qualified Plan Solutions to provide administrative services for 401(k) retirement accounts for Thompson and her employees. Thompson was the plan's administrator and trustee. Beginning in January 2016, Thompson withheld funds from her paychecks and her employees' paychecks. But except on one occasion, she did not deposit the funds as required by the plan. It was not until February 2017 that Thompson's employees noticed that their 401(k) accounts were underfunded. Thompson worked with QPS to get the accounts current, including both salary deferrals and earned interest. It was alleged that Thompson got the money to make these deposits by converting money from estate cases without being given approval by the court.  

HEARING PANEL: Thompson stipulated to the violations. The hearing panel noted several aggravating factors, including a dishonest or selfish motive and a pattern of misconduct. The misconduct was somewhat mitigated by Thompson's personal and emotional problems, but the panel did not believe that Thompson's stress and anxiety excused the misconduct. The disciplinary administrator recommended that Thompson be disbarred. Thompson asked that discipline be limited to a one-year suspension. A majority of the hearing panel recommended that Thompson be indefinitely suspended.

HELD: Thompson did not file exceptions to the report and the findings were deemed admitted. After considering the facts, the court agreed with the disciplinary administrator and ordered disbarment. The court found that Thompson's misconduct was too serious to justify a lesser sanction.

criminal 

appeals—criminal procedure—motions
state v. douglas
reno district court—reversed and remanded
court of appeals—affirmed
no. 119,170—may 31, 2019

FACTS: During traffic stop, officer observed a capsule sticking out of Douglas’ pants pocket. Capsule then dropped while Douglas exited the car. Capsule was retrieved and tested positive for methamphetamine. Douglas filed motion to suppress, arguing violation of constitutional rights. District court agreed, stating no description of the capsule was provided to the court, thus no basis to find the detention was based on a reasonable and articulable suspicion. State appealed, citing officer’s testimony about the capsule. Court of appeals reversed and remanded with directions to deny the motion to suppress. Dissenting judge agreed to the reversal, but would remand for district judge to reevaluate findings based on evidence the officer in fact described the capsule observed in Douglas’ pocket. Douglas’ petition for review granted.

ISSUE: (1) Ruling on motion to suppress—reversal and remand

HELD: When a district court judge’s ruling in favor of defense motion to suppress is infected with an obviously incorrect assessment of State’s evidence that is equivalent to an arbitrary disregard of a portion of that evidence, an appellate court cannot be certain if the district judge, once the error was pointed out, would arrive at the same or a different conclusion. In such circumstances, wisest course for appellate court is to reverse and give district judge another chance to review the record. Panel majority’s reversal and remand with directions to draw an opposite conclusion of law short-circuits that chance. Reversed and remanded for further proceedings. Panel’s decision is affirmed but its instructions to the district court are modified.

STATUTE: K.S.A. 22-3216(2)

appeals—criminal procedure—restitution—sentences
state v. johnson
montgomery district court—affirmed in part—vacated in part
no. 117,788—may 31, 2019

FACTS: Johnson entered a no contest plea to charges of felony murder, aggravated kidnapping, aggravated assault, and criminal possession of firearm. Sentencing included: inconsistent references as to whether the life sentence for felony murder included possibility of parole after 25 years or required lifetime postrelease supervision; ambiguity about what sentences were to run concurrent or consecutive; and journal entry stating that restitution was “to be determined (TBD).” Johnson appealed on sentencing claims.

ISSUES: (1) Lack of preservation of consecutive sentencing issue; (2) jurisdiction to impose restitution; (3) illegal sentence aspects requiring correction without remand

HELD: Merits of Johnson’s claim—that district court relied on facts outside the record in sentencing consecutive terms on felony murder and aggravated kidnapping convictions—is not considered. Johnson failed to raise this issue in district court, and does not explain why issue should be considered for first time on appeal.

District court’s failure to follow procedure mandated in State v. Hall, 298 Kan. 978 (2014), and State v. Charles, 298 Kan. 993 (2014), deprived district court of jurisdiction to set restitution later. That portion of journal entry and subsequent nunc pro tunc order indicating restitution remains “TBD” is vacated.

State concedes that judge’s inconsistent statements about parole eligibility after 25 years, not lifetime postrelease supervision, made this aspect of Johnson’s sentence illegal. The lifetime postrelease supervision term imposed at sentencing is vacated. Also, on face of record that clearly shows judge’s intention, no further action is required to correct the criminal possession sentence to make it concurrent with the other three sentences.

STATUTE: K.S.A. 2018 Supp. 21-6620(b)(1), -6820(i), 22-3504(1), -3504(3), -3717(b)(2)

criminal procedure—jurisdiction—motions—sentences—statutes
state v. smith
sedgwick district court—affirmed
court of appeals—affirmed
No. 113,828—may 31, 2019

FACTS: Smith was convicted in 1984 on a guilty plea to charges of burglary and theft. Jail credit not addressed at sentencing or in final journal entry. No appeal from subsequent revocation of probation in the 1984 case. Smith filed 2014 motion for jail credit for time spent in county jail and residential facility. District court denied the motion, finding any jail credit issue had been waived. Smith appealed, arguing broad interpretation of his pro se motion as one filed under K.S.A. 60-1507, or under K.S.A. 22-3504 citing State v. Guzman, 279 Kan. 812 (2005). Court of appeals affirmed in unpublished opinion. Smith petitioned for review, seeking resolution of conflict in court of appeals’ opinions regarding district court’s jurisdiction to review post-conviction jail credit motions.

ISSUES: (1) Jurisdiction; (2) clerical error

HELD: Smith’s failure to raise issue of jail credit on direct appeal does not foreclose a motion under the nun pro tunc provision in K.S.A. 22-3504(2) to review clerical errors in judgments. The words “at any time” in that subsection means Kansas courts, with some exception, have jurisdiction to determine whether a clerical error occurred even after the time for an appeal has passed. Contrary holdings are disapproved in unpublished panel opinions in this case, State v. Muldrow (No. 107291), State v. Blazier (No. 110070), State v. Olson (No. 102226),  State v. Burnett (No. 112681), State v. Brown (No. 111052), State v. Arculeo (No. 110974), State v. Lakin (No. 111060), State v. Walker (No. 109309), and any other court of appeals decision holding that a criminal defendant cannot move for correction of jail credit if the defendant failed to raise the issue in a direct appeal.

Summary dismissal of Smith’s motion was warranted. Smith requested 18 months of jail credit, but identified no clerical error. Instead, Smith makes conclusory statements, presents no evidentiary support and provides nothing in the record warranting relief.

CONCURRENCE AND DISSENT (Luckert, J.): Agrees that Smith’s failure to raise issue of jail credit on direct appeal did not result in waiver of the issue if relief is sought under K.S.A. 22-3504(2). Disagrees with majority’s conclusion that district court can be affirmed because Smith failed to allege a jurisdictional basis for his motion. Reasons cited for why the merits of Smith’s motion cannot be evaluated at this time, including whether standard for “clerical error” stated in State v. Storer, 53 Kan.App.2d 1 (2016), should be adopted. Would remand to allow parties to develop their procedural, factual and legal arguments about whether a clerical error occurred.

STATUTES: K.S.A. 2018 Sup. 21-6615, 22-3504(1), -3504(2), -3717(d)(1), -3717(q); K.S.A. 21-4614, 22-3504(1), -3504(2), 22-3722, 60-1507

Kansas Court of Appeals

Civil

EXHAUSTION OF ADMINISTRATIVE REMEDIES—UNEMPLOYMENT
LUCKETT V. KANSAS EMPLOYMENT SECURITY BOARD OF REVIEW
GEARY DISTRICT COURT—REVERSED AND REMANDED
NO. 119,717—MAY 31, 2019

FACTS: After losing her job, Luckett filed for weekly unemployment insurance benefit claims with the Kansas Department of Labor. Although some of her claims were denied, Luckett was awarded unemployment benefits for a certain period of time. In a letter dated more than 60 days after the last decision was rendered, Luckett sought payment of the benefits that were awarded as well as reconsideration of another decision. The referee who received Luckett's letter construed it as a motion to reconsider and denied it on grounds that it was untimely and failed to establish excusable neglect for a late appeal from a denial. The referee did not address Luckett's claim that she had not yet been paid the benefits that were awarded to her. Luckett again sent a letter clarifying that she wanted to be paid the benefits that she was awarded. Luckett filed a petition for judicial review. The district court ultimately granted KDOL's motion to dismiss, finding that Luckett's appeals were untimely. She appealed.

ISSUES: (1) Correct standard; (2) finding of excusable neglect; (3) motion to amend

HELD: Luckett's appeal was based on the KJRA. For that reason, a summary judgment standard is inappropriate. It is undisputed that Luckett's November 2017 letter was filed beyond the 16-day time limit established by statute. But that letter was not an appeal of an adverse decision. And the examiner's original decision allowed for reconsideration within one year assuming that Luckett provided some necessary information. That was what Luckett was attempting to do. The KDOL erred by construing Luckett's letter as an appeal. Luckett's filings were not untimely, and she was not required to exhaust administrative remedies before receiving relief. Luckett had claims consistent with a mandamus action. It was error to dismiss Luckett's petition for review without considering her motion to amend.

STATUTES: K.S.A. 2018 Supp. 44-703(d), -709(b)(2), -709(b)(3), -709(i), 60-215(a)(2), 77-603(a), -621(a)(1), -621(c)(4), -621(c)(7), -621(d); K.S.A. 60-

Criminal

criminal procedure—motions—sentences
state v. gonzalez
sedgwick district court—affirmed
no. 119,311—may 31, 2019

FACTS: Gonzalez pleaded guilty to criminal charges in 2012 and was granted probation. In 2013, he violated probation and served an 8-month prison sentence. In 2016, he was ordered to be deported. He filed a 2017 motion to withdraw his plea, arguing his attorney had not explicitly discussed deportation. He then amended his motion to claim excusable neglect for his untimely motion, citing his belief at the time of his plea that he was a lawful permanent resident non-citizen entitled to same protections as a United States citizen. District court denied the motion, finding Gonzalez failed to show excusable neglect.

ISSUE: (1) Post-sentence motion to withdraw plea

HELD: In this case, the acknowledgment of rights and entry of plea form that Gonzalez received during his plea hearing, reviewed with his attorney, understood and signed satisfied the requirements in Padilla v. Kentucky, 559 U.S. 356 (2010), as its language clearly identified deportation as a likely outcome instead of a mere abstract possibility.

STATUTE: K.S.A. 2018 Supp. 22-3210(d)(2), -3210(e)(1)(A), -3210(e)(2), -3608(c)

Tags:  8806  Attorney Discipline  Geary District  Montgomery District  Reno District  Sedgwick District  Weekly20190604 

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November 2, 2018 Digests

Posted By Administration, Monday, November 5, 2018

Kansas Court of Appeals

CIVIL

CONSTITUTIONAL LAW—FEDERAL PREEMPTION—PUBLIC UTILITIES—STATUTES
STATE v. BNSF RAILWAY COMPANY
CHASE DISTRICT COURT—REVERSED
NO. 118,095—NOVEMBER 2 , 2018

FACTS: District court convicted Burlington Northern Santa Fe (BNSF) of violating K.S.A. 66-273 for blocking a roadway in Chase County for approximately four hours. The statute prohibits trains from standing on a public road in or near a city or town for more than 10 minutes. BNSF appealed on issues including whether the Kansas statute is preempted by the federal Interstate Commerce Commission Termination Act (ICCT) and the Federal Railroad Safety Act.

ISSUE: Federal preemption of state law

HELD: The ICCTA pre-empts K.S.A. 66-273. BNSF’s conviction is reversed as a matter of law.  ICCT created the Surface Transportation Board (STB), giving it jurisdiction to regulate railroad transportation. While no court has addressed whether federal law preempts K.S.A. 66-273 or its predecessors, nearly all federal and state courts have concluded that state laws regulating how long a train can block a railroad crossing, and civil claims for alleged violations of state anti-blocking statutes, are preempted because they specifically target railroad operations.  Likewise, K.S.A. 66-273 infringes upon the exclusive jurisdiction of the STB because the statute specifically targets railroad carriers and has more than a remote or incidental effect on railroad operations.  

STATUTES: 49 U.S.C. §§ 1001 et seq. and 10501(a)-(b) (2016); K.S.A. 66-273, -274

MUNICIPALITIES—PROPERTY
JAYHAWK RACING PROPERTIES V. CITY OF TOPEKA
SHAWNEE DISTRICT COURT—REVERSED AND REMANDED
NO. 118,035—NOVEMBER 2, 2018

FACTS: In 2006, the City issued $10 million in Sales Tax and Revenue Bonds to finance improvements to Heartland Park racetrack. At the time the bonds were issued, the City owned Heartland Park in fee simple for a term of years, subject to Jayhawk Racing's reversionary interest. When the bonds failed to produce adequate revenue, the City indicated a desire to purchase Jayhawk Racing's reversionary interest in the property so that the City owned the facility outright. It was anticipating that this purchase would also be financed by the issuance of STAR bonds. But after an election changed the composition of the Topeka City Council, the City decided not to pursue the STAR bond sale. Without STAR bonds, there was no funding for the purchase of Jayhawk Racing's reversionary interest. Jayhawk Racing sued the City for breach of contract. The district court granted the City's motion for summary judgment, finding that the City could not bind its successors to issue STAR bonds. Jayhawk Racing appealed.

ISSUES: (1) Nature of the contract; (2) enforceability of the contract; (3) cash-basis laws

HELD: Municipal corporations have both governmental and proprietary capacities. The contract to purchase Jayhawk Racing's reversionary interest was a proprietary contract akin to a purchase agreement. Because the contract is proprietary, future City Councils were bound by the agreement. The district court erred when it focused only on the method of funding. The contractual provision which provided for the issuance of bonds is an exception to the Cash-Basis and Budget Laws.

STATUTES: K.S.A. 2017 Supp. 10-1116(a); K.S.A. 10-1112, -1119, 12-3013(e)(1), 79-2935

PATERNITY—PROBATE
IN RE ESTATE OF FECHNER
GEARY DISTRICT COURT—VACATED AND REMANDED
NO. 118,809—NOVEMBER 2, 2018

FACTS: Chad Fechner died in 2014, intestate and with only one living heir, his aunt, Rita Young. She opened a probate estate and was surprised when Gary Fechner filed a claim alleging that he was Chad's half uncle. Rita questioned the accuracy of the birth certificate that Gary put forth as proof; there had been prior suggestions that Chad's father was the product of an extramarital affair, which would mean he did not share DNA with Gary. Rita asked the district court to order Gary to undergo DNA testing to prove his biological relationship to Chad. Gary objected, claiming there was no authority to order DNA testing in a probate case. The district court agreed, disallowed the DNA testing, and relied on Gary's evidence in proclaiming him an heir. Rita appealed.

ISSUE: (1) Ability to order DNA testing in a probate case

HELD: If Gary truly is the brother of Chad's father, he would be an heir under the probate code. The probate code defines "children" as "biological children" or as children whose parentage has been determined under the Kansas Parentage Act. The Kansas Parentage Act allows for biology, adoption, or a determination under the Parentage Act. In this case, there is no way to initiate a Parentage Act case because Chad's father died many years ago. The Code of Civil Procedure allows for DNA testing in a probate case. But the district court must make Parentage Act and Ross findings about whether such testing is warranted. The district court's mistake of law about its ability to order testing was an abuse of discretion. That court should reconsider Rita's request.

STATUTES: K.S.A. 2017 Supp. 23-2209(a), -2212(a), 60-235(a)(1), -235(a)(2); K.S.A. 59-501(a), -504, -508, -2212

JURISDICTION
ALLISON V. STATE
MONTGOMERY DISTRICT COURT—DISMISSED
NO. 114,607—NOVEMBER 2, 2018

FACTS: Allison was convicted of serious felonies, and his convictions were affirmed on direct appeal. He then filed a motion for K.S.A. 60-1507 habeas corpus relief, claiming that trial counsel was ineffective. The district court appointed counsel for Allison and held an evidentiary hearing. At the conclusion of that hearing, the district court denied Allison's motion, finding that trial counsel was constitutionally sufficient. Allison docketed an appeal and then asked for a remand to the district court under State v. Van Cleave so that he could argue that his K.S.A. 60-1507 counsel was ineffective. After the hearing, the district court concluded that Allison was prejudiced by ineffective counsel at his K.S.A. 60-1507 hearing, and that the only remedy was to hold a new hearing on that motion. The State appealed that ruling.

ISSUE: (1) Jurisdiction

HELD: It is undisputed that ruling being appealed here is not a final decision. It did not dispose of the entire merits of the issue at hand—whether Allison's trial counsel was ineffective. The hearing on the Van Cleave remand was only an intermediate step. Because the ruling is not final, the court lacks jurisdiction to hear the appeal at this time. The appeal is dismissed.

STATUTES: K.S.A. 2017 Supp. 60-1507(d), -2102(a)(4), -2102(c); K.S.A. 60-1507

CRIMINAL

CONSTITUTIONAL LAW—CRIMINAL LAW—FOURTH AMENDMENT—SEARCH AND SEIZURE
STATE v. RITCHEY
SHAWNEE DISTRICT COURT—AFFIRMED
NO. 118,905—NOVEMBER 2, 2018

FACTS: Ritchey was arrested for an outstanding warrant while sitting as a front-seat passenger in a parked van. After Ritchey was out of the van and handcuffed, officer searched purse Ritchey left in the van and found drug residue. Ritchey was charged with possession of methamphetamine. She filed a motion to suppress, arguing the drug evidence was found during an illegal search of her purse. District court granted the motion, finding search of Ritchey’s purse was neither a search incident to arrest nor an inventory search. State filed interlocutory appeal, arguing the search was incident to the arrest, and even if illegal, the evidence would have been inevitably found during an inventory search at the jail. State also argued suppression did not advance purpose of the exclusionary rule.

ISSUE: Warrantless search of purse

HELD: District court properly suppressed evidence from the purse because State failed to show any exception for a warrantless search. Officers’ search of the purse was not a valid search incident to a lawful arrest where the purse was not on Ritchey’s person, there was no threat that Ritchey could use any weapons in her purse against the officers, and no possibility the purse contained evidence of her crime of arrest—an outstanding warrant. Next, applying rationale in State v. Baker, 306 Kan. 585 (2017), no showing that items within the closed purse would have inevitably been discovered where there was no evidence that police had policy to take items like the purse into possession for safekeeping, and no evidence the purse was sent along with Ritchey to the jail. Finally, State’s argument that suppression of the evidence in this case did not serve purpose of the exclusionary rule is rejected.

STATUTE: K.S.A. 2017 Supp. 22-3603

Tags:  114607  118035  118095  118809  118905  Chase District  Geary District  Montgomery District  Shawnee District  Weekly11062018 

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October 12, 2018 Digests

Posted By Administration, Tuesday, October 16, 2018

Kansas Supreme Court

Attorney Discipline

ORDER OF PUBLISHED CENSURE
IN RE MICHAEL J. STUDTMANN
NO. 118,992 – OCTOBER 12, 2018

FACTS: A hearing panel determined that Studtmann violated Kansas Rules of Professional Conduct 1.2(c) (scope of representation), 1.5 (fees), 1.7(a) (conflict of interest), 1.8(f) (accepting compensation for representation of client from someone other than the client), and 1.16(d) (termination of representation). The complaint arose after Studtmann agreed to represent two individuals who were involved in a fatality automobile accident. Studtmann represented both clients without discussing with them the potential for a conflict of interest. Studtmann also spoke with his client's parents without obtaining her consent to release information to them. Both clients discharged Studtmann and obtained new counsel after a week of representation. Studtmann failed to promptly refund unearned fees to the client's parents.

HEARING PANEL: Based on the record and on stipulations made by the parties, the hearing panel determined that the fees charged by Studtmann during his time on this case were unreasonable. The panel also found numerous conflicts with Studtmann's joint representation and his dealings with his client's parents. The hearing panel believed that some of Studtmann's behavior was motivated by selfishness and it found that some of his answers at the hearing were misleading or deceptive. After noting several mitigating circumstances, the disciplinary administrator recommended discipline of a 90 day suspension. Studtmann made an initial request for probation before asking for an informal admonition. The hearing panel recommended discipline of published censure and also believed that Studtmann should be required to refund the entire retainer amount.

HELD: There were no exceptions to the hearing panel's final report. After noting that Studtmann had already refunded fees and agreed to an audit of his trust account, the disciplinary administrator recommended discipline of published censure. A majority of the court agreed. A minority of the court, troubled by the findings of Studtmann's dishonest testimony, would impose the 90-day suspension initially requested by the disciplinary administrator.

Kansas Court of Appeals

Criminal

EVIDENCE—SEARCH AND SEIZURE
STATE V. SALAZAR
MONTGOMERY DISTRICT COURT – REVERSED AND REMANDED
NO. 119,070 – OCTOBER 12, 2018 

FACTS: A motorcyclist was killed after he was hit by a van driven by Salazar. After the accident, Salazar was upset but gave law enforcement permission to get her driver's license out of her vehicle. While looking for the license, officers found Salazar's cell phone on the floor. An officer picked it up and looked at it; when asked by another officer, he said that he was just trying to determine if Salazar was texting at the time of the accident. During her later interrogation, Salazar gave officers permission to search her phone. That investigation showed that Salazar sent a text at the exact time of the accident. Officers eventually requested and received a search warrant for Salazar's phone. Salazar was charged with multiple counts, including one count of vehicular homicide. She filed a motion to suppress, claiming that the officer's initial search of her cell phone was illegal, tainting any further evidence recovered from the phone. The district court granted the motion, finding that officers conducted an invalid warrantless search of the phone. The State appealed.

ISSUES: (1) Plain view exception; (2) Attenuation doctrine; (3) Exclusionary rule

HELD: A warrant is generally required before the search of a cell phone. The officer's search of Salazar's phone was unreasonable unless an exception to the warrant requirement applies. The district court made no findings about whether the officer pressed a button on Salazar's phone in order to see the text messages, or whether they were immediately visible. But the district court's implicit finding that the officer did manipulate the phone into showing messages is supported by substantial competent evidence. Because the officer pressed a button in order to activate the phone, the plain view exception does not apply. The district court did not make the findings necessary to determine whether Salazar's consent to search her phone was voluntary and remote enough to allow for application of the attenuation doctrine. The attenuation doctrine can only apply if Salazar's consent was voluntary, and further findings of fact are required before that can be determined.

STATUTES: No statutes cited.

Tags:  Attorney Discipline  Montgomery District  search and seizure  Weekly10162018 

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