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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 Rejecting all grounds but for a jury instruction claim on aggravated robbery, Court of Appeals in unpublished opinion reversed the aggravated robbery conviction and remanded for a new trial on those two counts.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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September 11, 2020

Posted By Administration, Monday, September 14, 2020

Kansas Supreme Court

 

CIVIL

 

HABEAS CORPUS—INEFFECTIVE ASSISTANCE OF COUNSEL
KHALIL-ALSALAAMI V. STATE
RILEY DISTRICT COURT—COURT OF APPEALS IS AFFIRMED,

DISTRICT COURT IS REVERSED—CASE REMANDED
NO. 115,184—SEPTEMBER 11, 2020

 

FACTS: Khalil-Alsalaami was convicted of two counts of aggravated criminal sodomy. At trial, a primary issue was the voluntariness of custodial statements made by Khalil-Alsalaami to law enforcement. Issues included the accuracy of the Miranda warning, the fact that Khalil-Alsalaami's primary language is Arabic, and a question about whether Khalil-Alsalaami knew he was confessing to an actual crime. Trial counsel stipulated that Khalil-Alsalaami's partial confession was knowing and voluntary and did not object when that stipulation was introduced at trial. After an unsuccessful direct appeal, Khalil-Alsalaami filed a K.S.A. 60-1507 motion challenging the effectiveness of his trial counsel. The district court denied the motion, finding that the stipulation and the failure to object to introduction of the agreement was a strategic decision. Khalil-Alsalaami appealed, and the Court of Appeals unanimously reversed and remanded, finding that trial counsel was constitutionally ineffective. The ruling gave particular mention to the failure of law enforcement to provide an interpreter for Khalil-Alsalaami. The State's petition for review was granted.

 

ISSUES: (1) Deficient performance of trial counsel; (2) prejudice resulting from deficient performance

 

HELD: The Court does not believe it is necessary to decide whether the lack of an interpreter renders Khalil-Alsalaami's confession involuntary. Instead, given the plain testimony from trial counsel, it is easy to see that counsel's performance was ineffective. The admissibility of Khalil-Alsalaami's confession was the paramount issue in the case, and counsel's failure to even attempt to keep it from the jury cannot be attributed to trial strategy. It is easy to see that prejudice occurred. This case must be returned to district court for a new trial.

 

CONCURRENCE: (Beier, J., joined by McAnany, S.J.) The majority reached the right decision. But it should also have found that Khalil-Alsalaami's confession was per se involuntary due to the lack of an interpreter, which was required by the plain language of K.S.A. 75-4351.

 

DISSENT: (Biles, J., joined by Stegall, J.) Counsel's motion to suppress would not have succeeded at trial, so a failure to file it could not have amounted to prejudicial ineffective assistance of counsel.

 

STATUTES: K.S.A. 60-1507, 75-4351

 

MORTGAGES
FAIRFAX PORTFOLIO LLC V. CAROJOTO LLC
WYANDOTTE DISTRICT COURT—COURT OF APPEALS IS AFFIRMED

DISTRICT COURT IS REVERSED—CASE REMANDED
NO. 118,712—SEPTEMBER 11, 2020

 

FACTS: Fairfax owned commercial real estate which was secured by a promissory note and mortgage held by Carojoto. Fairfax was in default on the note at the time Carojoto acquired the debt. Without warning, Carojoto took possession of the property and filed a mortgage foreclosure action. Carojoto eventually purchased the property at a sheriff's sale. Fairfax filed this action, claiming Carojoto improperly took possession of the property prior to the foreclosure action, causing damages. Carojoto sought dismissal, claiming it was allowed to take possession of the property under the terms of the mortgage. The district court agreed. The Court of Appeals reversed, holding that Carojoto was not allowed to rely on provisions of executory agreements. A petition for review was granted.

 

ISSUE: (1) Ability to take property

 

HELD: It has long been established that in the absence of stipulations to the contrary, a mortgagor of real property may retain possession of that property. The mortgage instrument alone cannot provide a sufficient stipulation for possession. Even if Carojoto included such language in its mortgage instrument, it cannot be enforced.

 

CONCURRENCE: (Stegall, J.) Justice Stegall concurs in the judgment solely on the grounds of stare decisis, which should be followed especially closely in instances where there is economic reliance.

 

DISSENT: (Biles, J.) The mortgage provision allowing possession is a "stipulation to the contrary" which overrides the general rule that a mortgagor is allowed to hold property.

 

STATUTES: K.S.A. 2019 Supp. 60-212(d); K.S.A. 58-2301

 

Criminal

 

CONSTITUTIONAL LAW—CRIMINAL PROCEDURE—MOTIONS—SENTENCING—STATUTES

STATE V. COLEMAN

WYANDOTTE DISTRICT COURT—AFFIRMED

NO. 120,246—SEPTEMBER 11, 2020

 

FACTS: Coleman’s 1999 conviction for first-degree premeditated murder and aggravated assault convictions were affirmed but case was remanded for resentencing because district court considered two aggravating factors not found in the statute to impose a hard-40 life prison term. 271 Kan. 733 (2001). Coleman again sentenced in 2001 to a hard-40 life term which was then affirmed in 2003 (unpublished). Coleman filed 2018 motion to modify his sentence to require no mandatory prison term, citing Alleyne v. United States, 570 U.S. 99 (2013), and State v. Soto, 299 Kan. 102 (2014). District judge summarily denied the motion, noting in part Coleman’s earlier K.S.A. 60-1507 motion. Coleman appealed.

 

ISSUE: (1) Motion to modify sentence

 

HELD: Appeal involves constitutional issues and questions of statutory interpretation.  Developing caselaw regarding sentence enhancement based on judicial fact finding is summarized. Coleman’s motion is not proper under K.S.A. 22-3504 (to correct an illegal sentence) or under K.S.A. 60-1507 (a collateral attack on an unconstitutional sentence), and Alleyene and Soto do not operate retroactively to provide a remedy in this case. Coleman cites K.S.A. 2019 Supp. 21-6628(c), but under analysis in State v. Thurber, 308 Kan. 140 (2018), that statute does not apply. District court judgment is affirmed.  

 

STATUTES: K.S.A. 2019 Supp. 21-6628(b), -6628(c), 60-1507(f)(1), -1507(f)(2); K.S.A. 2016 Supp. 21-6622(h); K.S.A. 21-4635, -4629, 60-1507,  22-3504

 

CONSTITUTIONAL LAW—CRIMINAL LAW—JURY INSTRUCTIONS

STATE V. KEYES

GRANT DISTRICT COURT—REVERSED AND REMANDED

NO. 118,894—SEPTEMBER 11, 2020

 

FACTS: Jury convicted Keyes of first-degree premeditated murder for fatally shooting victim in the chest and head. District court denied Keyes’ request to instruct jury on self-defense and involuntary manslaughter finding the evidence failed to support either instruction. Keyes appealed, claiming in part reversible error by the district court’s refusal to give the requested instructions. State argued a self-defense instruction was not justified where Keyes provoked the victim by taking a gun to the victim’s trailer and threatening the victim, and any error was harmless because Keyes’ testimony was implausible.

 

ISSUE: (1) Jury instruction

 

HELD: Based on evidence introduced at trial, a self-defense instruction was both legally and factually appropriate. State’s theory ignores Keyes’ testimony, if believed, that it was necessary to kill the victim in order to defend himself. Viewing the evidence in light most favorable to Keyes, district court erred in not instructing jury on self-defense and the court is not convinced there is no reasonable probability this error affected the outcome of the trial. Keyes’ additional claims in the appeal are not reached. Reversed and remanded.

 

CONCURRENCE (Leben, J.): Joins the court’s opinion in full but also comments on the standard of review. Because Keyes’ constitutional right to present a defense is at issue, the constitutional harmless-error test should apply. No need to decide which standard should apply here because State has not shown the district court’s error was harmless under either standard. This standard-of-review question can be addressed in a future case with briefing. 

 

STATUTE: K.S.A. 2019 Supp. 21-5108(c), -5222, -5226

 

 

 

Court of Appeals

 

CIVIL

 

FORECLOSURE—REAL ESTATE
BUCKLIN NATIONAL BANK V. HAYSE RANCH
KIOWA DISTRICT COURT—REVERSED AND REMANDED
NO. 121,690—SEPTEMBER 11, 2020

 

FACTS: In 2002, L.P.P. Mortgage Ltd. obtained a default judgment of foreclosure against Helen Hayse and her son, Paul. The district court confirmed the sheriff's sale and ordered a statutory redemption period of three months. The day before the redemption period ended, Helen assigned her rights of redemption to Celia Pruitt for $100. Pruitt then filed notice of her exercise of the right of redemption and deposited the total amount of Helen's debt to redeem the property. Pruitt followed up by filing an affidavit with the Register of Deeds in which she declared herself to be the owner of the property by virtue of her acquisition and subsequent exercise of redemption rights. Helen and Paul had previously used the property to secure a series of loans from Bucklin National Bank. Helen died intestate in January 2017, and after these loans went unpaid the Bank initiated foreclosure proceedings. Pruitt intervened in the action seeking a declaratory judgment that she was the rightful owner of the property. The Bank moved for summary judgment and the district court granted it, finding that exercising an assigned right of redemption was ineffective to pass title absent a document of conveyance. After her motion for new trial was denied, Pruitt appeals.

 

ISSUES: (1) Action to quiet title; (2) whether a deed is necessary to convey title

 

HELD: A statutory right of redemption is different than the common law equitable right of redemption, the latter of which arises before the foreclosure sale. Under the statutory scheme in Kansas, an assignee of a property owner's redemption rights obtains all property rights of the owner upon exercise of those redemption rights. Pruitt obtained equitable title to the property when she exercised the redemption rights that she purchased from Helen. It is not necessary to have a deed of conveyance to prove ownership of property. Pruitt took many official steps to register her equitable title, and that was enough to secure her primary right to the property. But the case must be remanded to determine whether Pruitt has a colorable claim of adverse possession.

 

STATUTE: K.S.A. 2019 Supp. 60-2414, -2414(h), -2414(i)

 

DIVORCE—MAINTENANCE
IN RE MARRIAGE OF WELTER
MIAMI DISTRICT COURT—REVERSED AND REMANDED
NO. 121,605—SEPTEMBER 11, 2020

 

FACTS: Steven and Keira Welter divorced in 2016. The decree ordered Steven to pay monthly maintenance of $781 for 73 months. One of the conditions on maintenance is that payments would stop if Keira remarried or was cohabitating, which was defined as living with a non-relative adult for substantially consecutive periods of time in excess of 30 days, even if the relationship was not marriage-like. Steven's maintenance payments were often suspended in the years after the divorce, primarily because Keira refused to comply with certain requirements of the divorce decree. In December 2018, Steven moved to terminate maintenance on grounds that Keira was cohabitating with her boyfriend. Keira objected, claiming she lived with her boyfriend only because she could not afford to live independently due to the lack of maintenance payments. After hearing arguments, the district court denied Steven's motion to terminate and instead modified the maintenance agreement to shorten Steven's obligation by nine months – the length of time Keira was cohabitating. Steven appealed.

 

ISSUE: (1) District court's authority to modify maintenance

 

HELD: It is undisputed that Keira violated the cohabitation termination condition of the divorce decree. The automatic termination clause of the decree means that Steven's maintenance obligation automatically terminated after June 2018. It does not matter that, at the time Keira was cohabitating, Steven's maintenance obligation has been temporarily suspended by the district court. Once the terminating event of cohabitation occurred, the district court lost the authority to modify Steven's maintenance obligation and equity does not require a different result.

 

DISSENT: (Atcheson, J.) All of the decisions made by the district court were within its discretion and authority, and the majority opinion places too many restrictions on district court action.

 

STATUTE: K.S.A. 2019 Supp. 23-2711(a)(3), -2902, -2903, -2904

 

CRIMINAL

 

CRIMINAL PROCEDURE—SENTENCING—STATUTES

STATE V. PATTON

RENO DISTRICT COURT—AFFIRMED

NO. 120,434—SEPTEMBER 11, 2020

 

FACTS: State charged Patton in November 2016 with DUI. In 2018, jury convicted him on that charge and district court imposed a 12 month sentence upon finding this was Patton’s fourth or subsequent DUI conviction. On appeal Patton claimed the prosecutor erred in closing argument by misstating the evidence. He also claimed district court erred under rule outlined in State v. Wetrich, 307 Kan. 552 (2018), by using Patton’s 2003 Oklahoma and 2007 Missouri DUI convictions to enhance the sentence.

 

ISSUES: (1) Prosecutorial error; (2) classification of prior out-of-state convictions to enhance sentence

 

HELD: Given the entire context of prosecutor’s closing arguments, prosecutor’s statements that Patton had been drinking on New Year’s Day 2016, and that the standard field sobriety tests showed Patton was under the influence, were not inconsistent with evidence presented at trial.

            Patton and the State agreed the rule Weitrich controls because K.S.A. 2015 Supp. 8-1567(i) was the rule in effect at the time Patton committed the DUI offense. But under State v. Reese, 300 Kan. 650 (2014), when a court enhances a current DUI sentence under K.S.A. 8-1567(i) it must apply the sentencing rule in effect at the time of sentencing. Applying the 2018 amendment to K.S.A. 8-1567(i) and (j), district court did not err in sentencing Patton as a fourth or subsequent DUI offender.

           

STATUTES: K.S.A. 2019 Supp. 8-1567(a), 22-3504(a); K.S.A. 2018 Supp. 8-1567, -1567(i), -1567(i)(1); K.S.A. 2017 Supp. 21-6811(e)(2)(A), -6811(e)(3); K.S.A. 2015 Supp. 8-1567, -1567(a), -1567(a)(3), -1567(b)(1)(D), -1567(i), -1567(j)

 

 

 

Tags:  constitutional law  criminal law  criminal procedure  divorce  foreclosure  habeas corpus  ineffective assistance of counsel  jury instructions  Kiowa District Court  maintenance  mortgages  motions  real estate  Reno District Cou  Riley District Court  sentencing  statutes  Wyandotte District Court 

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August 28, 2020 Digests

Posted By Administration, Monday, August 31, 2020

Kansas Supreme Court

Attorney Discipline

ORDER OF DISBARMENT
IN RE SUSAN ELIZABETH VAN NOTE
NO. 16,327—AUGUST 26, 2020

FACTS: In 2012, the Disciplinary Administrator initiated an investigation into Van Note after she was charged with two counts of murder in Missouri. Her license was temporarily suspended while the criminal process concluded. Van Note was acquitted on criminal charges and a wrongful death lawsuit was settled. Van Note was disbarred in Missouri in 2017. In a letter signed by Van Note on July 21, 2020, she voluntarily surrendered her license to practice law in Kansas.

HELD: The Court accepts the surrender of Van Note's license to practice law in Kansas and she is disbarred.

criminal

appellate procedure—contracts—criminal procedure—evidence—motions
state v. Braun
ellis district court—reversed and remanded; court of appeals—reversed
No. 113,762—august 28, 2020

FACTS: State charged Braun with DUI under K.S.A. 2012 Supp. 8-1567(a)(2) for having blood alcohol content of more than 0.08, and in the alternative with DUI under K.S.A. 2012 Supp. 8-1567(a)(3). Braun filed motion to suppress the blood test, arguing the Kansas implied consent law was unconstitutionally coercive. District court denied the motion. In bench trial on a conditioned stipulation of facts to be used for consideration of motion to suppress or as necessary to preserve Braun’s arguments about the motion, district court convicted Braun of DUI under K.S.A. 2012 Supp. 8-1567(a)(2). Journal entry did not mention the alternative charge. Braun appealed the district court’s denial of the motion to suppress. In unpublished opinion the Court of Appeals affirmed Braun’s conviction. Panel found the district court should have suppressed the blood test result but that error was harmless because there was sufficient evidence in the stipulated facts to establish that Braun committed the alternative charge of DUI under K.S.A. 2012 8-1567(a)(3). Braun’s petition for review granted on sole issue of whether panel erred in finding harmless error.

ISSUE: Stipulated facts in support of conviction on alternative charge

HELD: Braun’s conviction is reversed. Parties can agree to conditions that limit the circumstances where stipulated facts can be used, and a court is bound by any such conditions or limitations. Here the purpose of the stipulation was solely to determine the issue of law arising from Braun’s motion to suppress, and also conveyed that the facts would not be binding if an appellate court determined that a conviction based on K.S.A. 2012 Supp. 8-1567(a)(2) was not valid. Panel erred by not considering and applying the conditions that limited the binding nature of the parties’ stipulation. District court’s judgment is reversed and case is remanded for further proceedings related only to the alternative count of DUI under K.S.A. 2012 Supp. 8-1567(a)(2).

STATUTES: K.S.A. 2019 Supp. 60-261; K.S.A. 2012 Supp. 8-1001(k), -1567(a)(2), -1567(a)(3)

constitutional law—criminal law—criminal procedure—motions—sentencing—statutes
state v. Juarez
lyon district court—affirmed; court of appeals—affirmed
no. 118,543—august 28, 2020

FACTS: Juarez entered plea to aggravated battery of prison guard. District court found Juarez guilty but did not notify him of obligation to register as a violent offender under Kansas Offender Registration Act (KORA), and KORA did not list aggravated battery as a crime that automatically required registration. Juarez remained confined until sentencing hearing six weeks later. At sentencing, district court exercised its discretion to require Juarez to register as a violent offender under KORA. Juarez objected to lack of notice to register but offered no evidence on the issue. Sentencing continued to address restitution. Juarez again objected to lack of notice but again offered no evidence and asked for no additional time to present evidence. Three weeks later, sentence became final upon restitution order. Juarez appealed. Court of Appeals affirmed in unpublished opinion, relying on State v. Marinelli, 307 Kan. 768 (2018). Sole issue on review is whether the notice provided by the district court violated Juarez’ right to due process.

ISSUE: Due process—notice of obligation to register as violent offender

HELD: Validity of the district court’s registration order is not challenged and is presumed valid. District court’s failure to provide timely notice of Juarez’s obligation under K.S.A. 2019 Supp. 22-4904(a)(1)(A) did not constitute a denial of procedural due process because Juarez failed to demonstrate prejudice. He neither presented additional evidence nor asked for the opportunity to do so with respect to district court’s exercise of discretion to order registration, and he remained incarcerated with no responsibility to register between the time the district court should have provided notice and the time it actually did so.  

CONCURRENCE (Biles, J.): Concurs with the result but believes Marinelli controls disposition. District court’s timing error does not excuse the registration obligation, and Juarez did not show any prejudice.

CONCURRENCE (Stegall, J.): Concurs that Juarez’ due process rights were not violated, but does so because district court’s registration order was not valid. Based on State v. Thomas, 307 Kan. 733 (2018), once Juarez was convicted the district court lost its opportunity to create the necessary precondition for a registration obligation to spring into existence through judicial fact-finding. When a district court does not make the necessary fact-finding at time of conviction - and the notice is not given - no process has been denied because the defendant is not an offender required to register under KORA.

DISSENT (Rosen, J.)(joined by Beier, J.): Would find Juarez’ due process rights were violated. Stands by his dissents in previous cases that KORA is punitive in effect, and thus is a consequence of Juarez’ plea. Marinelli is distinguished. Here, Juarez plead no contest to a crime while completely unaware the court would later require him to register under KORA, and he was never offered the opportunity to withdraw that plea by demonstrating good cause (pre-sentencing motion) instead of having to show manifest injustice (post-sentencing motion.  

STATUTES: K.S.A. 2019 Supp. 21-5413(b)(2)(A), 22-4901 et seq., -4902(e)(1), -4902(a)(5),  -4904(a)(1)(A); K.S.A. 22-4902, -4905

appeals—appellate procedure—criminal law—statutes
state v. Lindemuth
shawnee district court—reversed and remanded; court of appeals—affirmed
No. 116,937—august 28, 2020

FACTS: Jury convicted Lindemuth of one count of criminal threat, K.S.A. 2019 Supp. 21-5415(a)(1). Court of Appeals reversed, holding trial court erred by rejecting proposed jury instruction on workplace defense. 55 Kan.App.2d 419 (2018). State sought review of panel’s decision on factual appropriateness of the workplace defense instruction. Days prior to oral argument, State v. Boettger, 310 Kan. 880 (2019) and State v. Johnson, 310 Kan. 835 (2019), held the provision in K.S.A. 2019 Supp. 21-5415(a)(1), allowing a conviction if a threat of violence is made in reckless disregard for causing fear, is unconstitutionally overbroad. Lindemuth filed Supreme Court Rule 6.09 letter arguing his appeal was affected and requesting reversal of his conviction as in Johnson. Supplemental briefing ordered.

ISSUE: Change of law—constitutional error

HELD: Panel’s judgment is affirmed as right for the wrong reason. Lindemuth’s conviction cannot stand after Johnson, regardless of outcome on State’s issue for review. Like Johnson, the trial record provides no basis for court to discern whether jury concluded the State had proved beyond a reasonable doubt that Lindemuth committed criminal threat intentionally, and court cannot conclude the State met its burden of showing the constitutional error was harmless. District court’s judgment is reversed and case is remanded with directions.

DISSENT (Biles, J.)(joined by Stegall, J.): Would find the constitutional error harmless under the rationale in Justice Stegall’s dissenting opinion in Johnson, and would keep the case to reach the instructional error claim.

DISSENT (Rosen, J.): Would find the constitutional error harmless. While there was strong evidence supporting intentional conduct in Johnson, he agreed with majority that there was also evidence of recklessness.  Here he sees no evidence of recklessness where Lindemuth simply denied making any threatening statements.

STATUTE: K.S.A. 2019 Supp. 21-5202(h), -5202(j), -5223(a), -5415(a)(1)

 

Kansas Court of Appeals

criminal

appeals—criminal procedure - sentencing
state v. Dominguez
sedgwick district court - reversed and remanded
no. 121,618—august 28, 2020

FACTS: Dominguez sentenced in August 2017 to prison term and granted probation for 24 months. In October 2017 district court found probation violation and imposed three-day quick dip jail sanction. A September 2018 warrant issued for six probation violations. At a July 10, 2019, hearing district court revoked probation, applying the July 1, 2019, amendment to the intermediate sanctioning scheme which removed the requirement for a 120-day or 180-day sanction before revocation could be ordered. Dominguez appealed, arguing for first time that district court should have applied either the law in effect at time of her 2018 probation violations or the law in effect when she committed her 2017 crimes of conviction.

ISSUE: Revocation of probation—K.S.A. 2019 Supp. 22-3716

HELD: Following the reasoning in State v. Coleman 311 Kan. 332 (2020), and finding unpublished Court of Appeals’ opinions on the same issue persuasive, court holds the 2019 amendment to the intermediate sanctioning scheme at K.S.A. 22-3716 does not apply retroactively to probation violators whose crimes were committed before the effective date of the amendment.  State’s reliance on State v. Tearney, 57 Kan.App.2d 601 (2019), is misplaced.  Reversed and remanded for new dispositional hearing. District court must impose either a 120-day or 180-day prison sanction before revoking Dominguez’ probation unless the court finds a valid statutory ground to circumvent further intermediate sanctions.

STATUTES: K.S.A. 2019 Supp. 21-6810(e), 22-3716, -3716(c), -3716(c)(1)(C), -3716(c)(10);  K.S.A. 2018 Supp. 22-3716(c)(1)(A)-(D); K.S.A. 2017 Supp. 22-3716(c)(9)(B), -3716(c)(12); K.S.A. 2016 Supp. 22-3716(c); K.S.A. 22-3716

Tags:  appeals  appellate procedure  constitutional law  contracts  criminal law  criminal procedure  disbarment  Ellis District Court  evidence  Lyon District Court  motions  Sedgwick District Court  sentencing  Shawnee District Court  statutes 

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July 17, 2020 Digests

Posted By Administration, Monday, July 20, 2020

 

Kansas Supreme Court

 

CRIMINAL

 

ATTORNEYS—CONSTITUTIONAL LAW—CRIMINAL PROCEDURE—MENTAL COMPETENCY

STATE V. BURDEN

SUMNER DISTRICT COURT—AFFIRMED; COURT OF APPEALS—AFFIRMED

NO. 116,819 - JULY 17, 2020

 

FACTS: Burden was charged with possession of drugs and drug paraphernalia. District court found she was competent to stand trial pursuant to a court-ordered competency exam and evaluation that found, in part, that Burden had “no significant impairment that is psychiatric in nature.”  District court also allowed Burden to represent herself, and appointed standby counsel. Jury convicted her on drug possession charges, and acquitted on the paraphernalia charge. Burden appealed, arguing district court used an incorrect standard to determine whether she was competent to represent herself. Court of appeals affirmed in unpublished opinion. Review granted.

 

ISSUE: (1) Standard for determining mental competency

 

HELD: Three distinct but related concepts are examined—mental competency to stand trial, the capacity to waive the right to counsel, and mental competency to self-represent. Indiana v. Edwards, 554 U.S. 164 (2008), allows a district court judge to deny a request to waive counsel if a defendant has a severe mental illness. But there is no error when a court does not appoint counsel for a defendant who wishes to exercise the right of self-representation if there is no evidence of the defendant's severe mental illness. Here, the district court did not err in allowing Burden to exercise her constitutional right of self-representation when the record does not establish that she suffers from a severe mental illness.  

 

STATUTE: K.S.A. 22-3301, -3301(1)

 

CRIMINAL PROCEDURE—MOTIONS—STATUTES

STATE V. EDWARDS

SHAWNEE DISTRICT COURT—AFFIRMED

NO. 120,600—JULY 17, 2020

 

FACTS: Jury convicted Edwards in 1996 of first-degree murder, conspiracy to possess with intent to sell hallucinogenic drugs, and aggravated robbery. In 2011, he filed motion for DNA testing of items found at crime scene. District court granted the motion in 2013, and for additional, independent DNA analysis of the evidence. District court held a 2017 hearing and found the DNA results were favorable to Edwards, but denied Edwards’ motion for a new trial because the DNA evidence was “not reasonably probable to lead to a jury reaching a different result.”  Edwards appealed.

 

ISSUE: (1) DNA testing statute

 

HELD: Even when additional DNA testing ordered under K.S.A. 2019 Supp. 21-5212 leads to results favorable to the defense, a district judge does not necessarily abuse his or her discretion by denying a motion for new trial. As in State v. LaPointe, 309 Kan. 299 (2019), the non-DNA evidence against Edwards is strong. District judge did not abuse her discretion by concluding there was no reasonable probability the DNA results would have changed the original trial’s outcome. District judge’s denial of Edwards’ motion for a new trial is affirmed.

 

STATUTE: K.S.A. 2019 Supp. 21-2512, -2512(f)(2)

 

CONSTITUTIONAL LAW—CRIMINAL LAW—EVIDENCE—STATUTES

STATE V. HARRIS

SEDGWICK DISTRICT COURT—REVERSED AND REMANDED; COURT OF APPEALS—REVERSED

NO. 116,515—JULY 17, 2020

 

FACTS: Harris, a convicted felon on parole, was in an altercation when he opened a pocketknife with a 3.5 inch serrated blade for protection, then dropped it when police arrived. State charged him with aggravated assault, criminal possession of a weapon by a convicted felon, and criminal use of a weapon. Harris filed motion to dismiss the possession charge, claiming the statutory definition in K.S.A. 2019 Supp. 21-6304 of a “knife” was unconstitutionally vague on its face and as applied. District court denied the motion. Harris also sought to introduce evidence of parole officer who advised him he could carry a knife less than 4 inches long, and similar info in Kansas Department of Corrections (KDOC) orientation and handbook. Adopting State’s position that parole officers and KDOC staff are not legally authorized to interpret statutes, district court excluded all evidence in support of Harris’ mistake-of-law defense.  Harris appealed, claiming district court erred by rejecting his vagueness challenge to the statute and by excluding all evidence supporting his mistake-of -fact defense. In unpublished opinion Court of Appeals rejected the constitutional challenge, but reversed the trial court’s evidentiary ruling on the mistake-of-fact evidence and remanded for a new trial. Review granted.

 

ISSUES: (1) Constitutionality of K.S.A. 2019 Supp. 21-6304; (2) evidence—mistake of law defense

 

HELD: Case is resolved on a facial challenge to the statute. The residual clause "or any other dangerous or deadly cutting instrument of like character" in K.S.A. 2019 Supp. 21-6304 is unconstitutionally vague because it fails to provide an explicit and objective standard of enforcement. Similar problem in City of Lincoln Center v. Farmway Co-Op, Inc., 298 Kan. 540 (2013)(noise ordinance is unconstitutionally vague). This constitutional failure began with legislative enactment that impermissibly delegated legislative power to the executive and judicial branches.

            Because case is resolved in Harris’ favor on constitutional grounds, the evidentiary issue raised in State’s petition is not reached.

 

DISSENT (Biles, J.)(joined by Rosen, J. and Green, J.): K.S.A. 2019 Supp. 21-6304 is not unconstitutionally vague on its face or as applied to Harris. Majority imposes too strict a standard on Legislature’s ability to formulate criminal laws. Analyzing K.S.A. 2019 Supp. 21-6304(c)(1) in light of the facts, the statute is sufficiently clear to have informed Harris it was unlawful to possess his knife, and the statute is sufficiently clear to stave off any contention that authorities arbitrarily prosecuted him for having it. Photo of Harrisknife is attached. Majority’s reading  of Farmway is criticized.

            Would reverse Harris’ conviction because he is entitled to pursue a mistake-of-law defense. KDOC is legally authorized to interpret the criminal-possession statute, and the KDOC handbook could be read by Harris as containing the agency’s official interpretation of the statute. Trial court’s error in not allowing Harris to pursue a mistake-of-law defense was not harmless in this case.

 

STATUTES: K.S.A. 2019 Supp. 21-5207(b)(4), -6304, -6304(c)(1), -6304(c)(2); K.S.A. 2018 Supp. 21-5207(b)(4); K.S.A. 2016 Supp. 21-5111(aa)(5), -5111(p)(2), 75-5217, -5217(a), -5217(b), -5217(c), -5217(d); K.S.A. 2012 Supp. 21-630; K.S.A. 21-6301, -6304, 75-5201, -5216

 

CONSTITUTIONAL LAW—CRIMINAL PROCEDURE—JURIES—STATUTES

STATE V. HARRISON

JOHNSON DISTRICT COURT—AFFIRMED; COURT OF APPEALS—AFFIRMED

NO. 116,670—JULY 17, 2020

 

FACTS: Jury convicted Harrison of various crimes committed in 2015. During deliberation, judge discussed jury question with Harrison, counsel and prosecutor all present. All agreed to send jury a written response. Harrison appealed on four claims of trial error, including his challenge at not being present when written response was passed to the jury by court staff. In unpublished opinion court of appeals affirmed the convictions, holding in part the district court violated Harrison’s constitutional right to be present at a critical stage in the proceedings by responding to the jury in writing rather than giving the answer in open court with Harrison present, but the error was harmless. Review granted limited to the district court’s failure to have Harrison present when jury received the answer.

 

ISSUE: (1) Response to jury’s question

 

HELD: District court complied with both statutory and constitutional requirements. 2014 revision of K.S.A. 22-3420 allows judges to answer jury questions in open court or in writing. K.S.A. 2019 Supp. 22-3405(a) is analyzed in light of that revision. If a criminal trial judge responds to a jury question in writing by having court personnel deliver the response to the jury in the jury room: the delivery is not a stage of the trial at which a defendant must be present under K.S.A. 2019 Supp. 22-3405(a);  K.S.A. 2019 Supp. 22-3420(d) does not require a defendant’s presence when the jury receives that response; and the defendant’s right to be present during critical stages of the proceedings is not a violation under the Sixth Amendment Confrontation Clause or the Due Process Clause of Fourteenth Amendment. Nothing in the record reasonably suggests Harrison’s presence was essential or critical to a fair and just determination of a substantial issue. Review of panel’s harmless error analysis is unnecessary.

 

STATUTES: K.S.A. 2019 Supp. 22-3405(a), -3420(d); K.S.A. 22-2102, -3405(1), -3420(3)

 

 CRIMINAL PROCEDURE—MOTIONS—POSTCONVICTION RELIEF—STATUTES

STATE V. HILL

OSAGE DISTRICT COURT—AFFIRMED

NO. 119,359—JULY 17, 2020

 

FACTS: Pursuant to amended plea agreement, Hill entered no a contest plea in 2000 to various charges including premeditated first-degree murder. No direct appeal taken. Hill then pursued various post-conviction motions: 2004 motion under K.S.A. 60-1507; 2008 motion to withdraw his no contest pleas; 2014 and 2015 motions including new motion to withdraw pleas and motion to correct illegal sentence. District court denied each motion, and when appealed, the court of appeals affirmed. Present appeal is from district court’s denial of Hill’s 2017 pro se “Motion to Set Aside a Void Judgment Under Due Process of Law and K.S.A. 22-3210.”  The district court construed the motion as one to withdraw pleas under K.S.A. 22-3210, and denied the motion as untimely. District court further found no manifest injustice supported withdrawal of the pleas, found Hill was represented by competent counsel, there was no coercion or unfair advantage taken of Hill, and his pleas were knowingly and understandingly made. Hill appealed, arguing trial court errors, including incorrectly analyzing the motion as one to withdraw plea instead of a motion to void convictions and sentence, denied Hill due process.

 

ISSUE: (1) Due process—motion to correct illegal sentence

 

HELD: Trial judge correctly construed Hill’s various arguments as another effort to withdraw his pleas. Hill’s 2017 motion was filed outside the one year time limitation added to K.S.A. 22-3210 in 2009, and no grounds of excusable neglect for his untimely filing are asserted by Hill or otherwise demonstrated. Hill’s motion is procedurally barred. Trial court’s decision is affirmed.

 

STATUTES: K.S.A. 2019 Supp. 22-3210, -3210(a), -3210(b), -3210(d), -3210(d)(1), -3210(d)(2),  -3210(e)(1), -3210(e)(2); K.S.A. 2017 Supp. 22-3210, -3210(e)(1); K.S.A. 60-1507

 

 

Kansas Court of Appeals

 

CIVIL

 

DUISEARCH AND SEIZURE
CITY OF COLBY V. FOSTER
THOMAS DISTRICT COURT
REVERSED AND REMANDED
NO. 121,373
JULY 17, 2020

 

FACTS: A municipal court convicted Foster of DUI, and Foster appealed to district court. Prior to trial, Foster filed a motion to suppress evidence, including the breathalyzer results. During a hearing on that motion, Foster discovered that law enforcement administered the breath test before providing the implied consent advisories. The district court denied the motion, holding that at the time Foster was arrested, there was no requirement to provide the advisories because Foster was given the breath test incident to arrest. Foster was convicted after a bench trial, and he appealed.

 

ISSUE: (1) Whether the district court erred by denying the motion to suppress

 

HELD: The law in effect at the time of the criminal act controls. Foster was arrested on May 6, 2018, and on that date the amendments to K.S.A. 8-1001 had not yet been enacted. K.S.A. 2017 Supp. 8-1001(k) required that Foster receive notice of his statutory rights. There is not substantial evidence that Foster consented to the search and because he never received the statutory advisory, his consent could not have been knowing or voluntary. Similarly, Kansas law required that Foster be given the consent advisory even if the search of the breath test was done incidental to an arrest. It was not enough for the officer to deliver the implied consent advisories after the breath test had been conducted. That was not substantial compliance. The evidence should have been suppressed.

 

STATUTE: K.S.A. 2017 Supp. 8-1001(a), -1001(b), -1001(k)

 

DUIIMPLIED CONSENT
FISHER V. KANSAS DEPARTMENT OF REVENUE
DOUGLAS DISTRICT COURT
AFFIRMED
NO. 118,830
JULY 17, 2020

 

FACTS: Officer Russell saw Fisher speeding through town. Russell caught up with Fisher, who showed signs of impairment including bloodshot eyes, slurred speech and an unsteady gait. Russell arrested Fisher and gave him the implied consent advisories from the DC-70 form. Fisher refused to take a blood or breath test without an attorney present, so Russell obtained a warrant to draw blood. The test confirmed that Fisher was under the influence, and his driver's license was subsequently suspended. The suspension was affirmed by both the Kansas Department of Revenue and the district court, which found that reasonable grounds existed to require testing. Fisher appealed.

 

ISSUES: (1) Probable cause to arrest; (2) adequacy of implied consent advisory

 

HELD: Russell observed Fisher speeding and running a red light. Russell also had slurred speech and bloodshot eyes, and he smelled strongly of alcohol. Under the totality of the circumstances, there was substantial competent evidence to support the district court's conclusion that Russell had reasonable grounds to believe that Fisher was driving under the influence. The DC-70 form given to Fisher did not tell him that he had a constitutional right to refuse to submit to the test. An arresting officer must substantially comply with statutory notice provisions. In this case, Russell substantially complied by providing the implied consent notices from the revised DC-70 form. Fisher is correct that a driver is not required to consent to a requested test. But the use of the word "requires" in the statute is not by itself unduly coercive. The text, when read in its entirety, clearly informs drivers that they have the right to refuse testing.

 

STATUTES: K.S.A. 2016 Supp. 8-1001(a), -1001(k), -1020(q); K.S.A. 2014 Supp. 8-1025

 

DUIEXCLUSIONARY RULE
JOHNSON V. KANSAS DEPARTMENT OF REVENUE
COWLEY DISTRICT COURT
AFFIRMED
NO. 119,151
JULY 17, 2020

 

FACTS: Trooper LaVelle responded to reports of a one-vehicle accident. He waited on the scene while EMS treated Johnson, the driver. As EMS was walking Johnson to his car, LaVelle noticed that Johnson was swaying as he walked. EMS told LaVelle that Johnson had given the wrong birth date while in the ambulance, and they noticed that he smelled strongly of alcohol. LaVelle noticed the same thing, along with bloodshot eyes. Johnson failed the field sobriety tests that he performed. As a result. LaVelle arrested Johnson and gave him a copy of the DC-70 form before asking him to submit to an evidentiary breath test. Johnson agreed to the breath test, which revealed that his breath alcohol level was over the legal limit. Johnson received the DC-27 form and his driver's license was suspended. The Kansas Department of Revenue affirmed the suspension, so Johnson sought judicial review. The district court found that the encounter between LaVelle and Johnson was appropriate, and Johnson appealed.

 

ISSUES: (1) Reasonable grounds to request a breath test; (2) due process violation

 

HELD: In order to request an evidentiary breath test, LaVelle needed to have reasonable grounds to believe that Johnson was driving under the influence and Johnson had to be under arrest, in custody, or involved in a car accident. In this case, Johnson was in an accident which damaged property. There was also probable cause that Johnson was driving under the influence, and the district court reviewed the evidence under the correct standard. The district court's decision was supported by substantial competent evidence, and the appellate court will not reweigh the evidence. It is undisputed that some of the information contained in the implied consent advisory was later declared unconstitutional. But criminal DUI law does not apply herespecifically, the exclusionary rule has no application in an administrative license proceeding. And even if it did, the good faith exception would apply here. Johnson failed to prove that he suffered a violation of his procedural due process rights. And any substantive due process analysis must be specifically analyzed under the Fourth Amendment. Johnson could not prove that he suffered a substantive due process injury under the Fourth Amendment.

 

STATUTES: K.S.A. 2015 Supp. 8-1001, -1002(a); K.S.A. 77-621(a)(1), -621(c)

 

IMPLIED CONSENT—JURISDICTION
SANDATE V. KANSAS DEPARTMENT OF REVENUE
JOHNSON DISTRICT COURT—AFFIRMED
NO. 119,514—JULY 17, 2020

 

FACTS: Officer Jordan was driving behind Sandate and noticed that he was not maintaining a lane or signaling lane changes. Jordan initiated a traffic stop and arrested Sandate, who admitted to consuming alcohol, showed signs of impairment, failed field sobriety tests and refused a preliminary breath test. Jordan gave Sandate the appropriate DC-70 form when requesting the test and the appropriate DC-27 form after the refusal. The Kansas Department of Revenue affirmed the suspension, as did the district court after Sandate requested judicial review. Sandate appealed.

 

ISSUES: (1) Subject matter jurisdiction; (2) substantial compliance of the DC-70 form; (3) use of the word "require"

 

HELD: Although other panels of the court of appeals have found otherwise, the district court did have subject matter jurisdiction. Any given court of appeals panel is not bound by another panel's decision. Each panel conducts an independent analysis and comes to its own conclusion. The DC-27 form has two components: notification and certification. It acts like a charging document and charging documents do not bestow or confer subject matter jurisdiction and defects in a complaint do not deprive a court of power to hear the case. KDOR had jurisdiction to suspend Sandate's driver's license. Sandate did not properly preserve for review part of his argument. The evidence before the district court shows that Jordan substantially complied with K.S.A. 2016 Supp. 8-1001(k), and Kansas has never required strict compliance. Although the DC-70 uses the word "require", it is not coercive.

 

STATUTES: K.S.A. 2019 Supp. 8-259, -1001(k), -1002, -1002(a), -1020; K.S.A. 2016 Supp. 8-1001(k), -1002(a), -1002(f)

 

 

Tags:  attorneys  constitutional law  criminal law  criminal procedure  DUI  evidence  exclusionary rule  implied consent  juries  jurisdiction  mental competency  motions  postconviction relief  search and seizure  Sedgwick District Court  Shawnee District Court  statutes  Sumner District Court 

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July 10, 2020 Digests

Posted By Administration, Monday, July 13, 2020

Kansas Supreme Court

Civil

ADOPTION
IN RE ADOPTION OF BABY GIRL G.
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED, CASE REMANDED
NO. 121,051—JULY 10, 2020

FACTS: Baby Girl G. was born in 2018. The day after her birth the natural mother signed a consent to adoption and relinquished her parental rights. In that consent form, she named two men as possible fathers. The adoptive parents filed actions in district court seeking to terminate the parental rights of natural mother and both men named as possible fathers. A month later, Father filed a voluntary acknowledgement of paternity and indicated his intent to contest the adoption. After an evidentiary hearing, the district court found that Father failed to provide meaningful support to natural mother during the final six months of her pregnancy. The district court also found that Father was unfit on several grounds, but it elected not to use them as a basis for termination. Father's parental rights were terminated. The court of appeals affirmed that ruling but reversed the award of attorney fees and remanded the case to district court for further consideration of that issue. Father's petition for review was granted.

ISSUES: (1) Constitutionality of K.S.A. 2019 Supp. 59-2136(h)(1)(D); (2) whether there was adequate evidence of a failure to support;

HELD: The court declines to address the constitutional issue because it was not raised before the district court or court of appeals. It is not sufficient to raise a new issue for the first time in a petition for review, and counsel presented inconsistent arguments to the appellate courts. There was sufficient evidence to support the district court's decision that Father failed to support the natural mother during the last six months of her pregnancy. Father's non-financial support was minimal and of little value to the mother and his financial support was inconsequential.

DISSENT: (Stegall, J.) Justice Stegall would consider the merits of Father's constitutional claim in order to serve the ends of justice. Preservation is a prudential rule rather than a jurisdictional bar and it can be waived if justice requires. The disparate treatment for unwed biological fathers in adoption cases is troubling.

STATUTE: K.S.A. 2019 Supp. 59-2136, -2136(h), -2136(h)(1)

JURISDICTION—TAXATION
IN RE EQUALIZATION APPEALS OF TARGET CORPORATION
BOARD OF TAX APPEALS—COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART, CASE REMANDED TO THE COURT OF APPEALS
NO. 119,228 – JULY 10, 2020

 FACTS: Target is one of several commercial real estate owners in Johnson County which appeals the County's ad valorem tax valuation for the 2016 tax year on seven commercial properties. After an evidentiary hearing, the Board of Tax Appeals issued a summary decision ordering lower values for each property. The Taxpayers promptly requested a full and complete written opinion. Five weeks later, the Taxpayers confirmed that the County did not request a full and complete written opinion and subsequently withdrew their request. The County objected, asking BOTA to issue a full and complete written opinion regardless of the withdrawal. The County noted that it didn't learn of the withdrawal until it was too late to file its own request. In the alternative, the County asked that BOTA consider the objection as a request for reconsideration of the summary decision. BOTA denied both requests and the County appealed. The court of appeals dismissed the appeal for lack of jurisdiction and the petition for review was granted.

ISSUES: (1) Jurisdiction; (2) scope of review

HELD: The Kansas Judicial Review Act provides the exclusive means for judicial review of agency action. There is not a final order in this case because there is no full and complete written opinion and the Taxpayers did not seek a trial de novo in district court. The KJRA does allow for limited review of nonfinal agency actions if certain conditions are met. BOTA's failure to issue a full and complete written opinion is properly considered a nonfinal agency decision. K.S.A. 77-631(a) allows for an appeal from an agency's failure to act in a timely manner. The County was an aggrieved party, as that term is used in K.S.A. 74-2426(c). BOTA's refusal to issue the full and complete written opinion was an order and is appealable on an interlocutory basis. The case is remanded to the court of appeals for further consideration of whether BOTA acted properly in failing to issue a full and complete opinion. Because there has not been a final decision the court of appeals cannot yet address the merits of the County's argument.

criminal

appellate procedure—criminal procedure—evidence
state v. brazzle
riley district court—affirmed; court of appeals—affirmed
no. 116,649—july 10, 2020

FACTS: Following car stop and subsequent discovery of drugs, Brazzle was convicted of drug-related crimes including possession of methamphetamine with intent to distribute and possession of oxycodone. During trial, district court found the State’s prior crime evidence of Brazzle’s sale of methamphetamine to undercover detective was admissible to show whether Brazzle intended to distribute the methamphetamine found in the car. On appeal, Brazzle claimed: (1) district court erred in admitting K.S.A. 60-455 evidence related to the prior methamphetamine sales; (2) jury instruction on possession of oxycodone did not require jury to find that he illegally possessed the drug without a prescription; and (3) insufficient evidence supported his conviction for possession of oxycodone. Court of appeals affirmed, finding in part that Brazzle could not claim instructional error on appeal because he advocated for the version of the instruction given to the jury. 54 Kan.App.2d 276 (2018). Review granted.

ISSUES: (1) Evidence of prior crimes; (2) invited error; (3) sufficiency of the evidence

HELD: District court did not err in admitting prior crimes evidence under K.S.A. 60-455. Caselaw on evidence of intent for simple possession is distinguished from possession with intent to distribute. If a defendant argues he or she lacked the intent to distribute drugs, evidence about a prior crime committed by the defendant may be material, especially if evidence establishes similarities between the prior crime and the charged crime. Under facts in this case the prior crimes evidence was material to and probative of Brazzle’s intent to distribute, and the risk for undue prejudice did not substantially outweigh the probative value.  

            By failing to argue in his petition for review why the court of appeals erred in its invited error analysis, Brazzle waived any argument he might have as to why the invited error doctrine did not apply to his claim of instructional error.

            Sufficient evidence supports Brazzle’s possession of oxycodone conviction. There was circumstantial evidence that oxycodone was part of Brazzle’s illicit drug inventory, and jury could infer Brazzle would not put his own prescription medication in same bag containing drugs that he intended to distribute. Officer’s testimony comparing the appearance of Brazzle’s pills to an image of a pill identified as oxycodone on drugs.com was sufficient. Brazzle did not object to officer’s testimony regarding how he identified the pills found in the car, and did not object to the pills being entered into evidence. Brazzle cannot recast an evidentiary ruling as a sufficiency argument.

STATUTES: K.S.A. 2019 Supp. 60-455; K.S.A. 2015 Supp. 21-5702(b), -5705(e)(2), -5706(a), 65-4116(c)(3); K.S.A. 60-404, -455 Civil 

criminal procedure—juries—motions—statutes
state v. carter
sedgwick district court—affirmed
no. 119,315—july 10, 2020

FACTS: State filed charges against Carter arising from Carter hitting and threatening a victim (Crowe) in November 2015, and arising from a December 2015 shooting that resulted in the death of two other victims. District court granted State’s motion to consolidate the charges, finding the charges were connected. Jury convicted Carter of first-degree felony murder, criminal discharge of a firearm, aggravated battery, and criminal threat. On appeal, he claimed district court erroneously refused to add language to the aiding and abetting instructing that “mere presence” alone does not establish mental culpability to convict under aiding and abetting, citing State v. Llamas,  298 Kan. 246 (2013), and the “better practice” recommendation in State v. Hilt,  2999 Kan. 176 (2014), to give such language. Carter also claimed the district court erred in consolidating the charges.

ISSUE: (1) Jury instruction—aiding and abetting; (2) motion to consolidate

HELD: Court rejects Carter’s argument for converting “better practice” into a legal requirement that “mere presence” language must be included in cases where a defendant is charged under an aiding and abetting theory and requests the instruction. While there was a modicum of evidence that Carter’s requested instruction was factually appropriate, any possible error in failing to give the requested instruction was harmless given the weight of evidence supporting Carter’s guilt.

            District court’s decision to consolidate the charges is affirmed. Cases involving consolidation decisions are discussed. In this case, Carter’s battery of Crowe precipitated the factual setting which led to Carter’s participation in the shooting.  District court correctly found a statutory condition for consolidation was met, and did not abuse its discretion in allowing consolidation.    

STATUTES: K.S.A. 2019 Supp. 60-261; K.S.A. 22-3202, -3202(1), -3202(3), -3203,

 

Kansas Court of Appeals

  CRIMINAL

criminal procedure—evidence—juries—motions—sentencing
state v. williams
sedgwick district court—affirmed in part, reversed in part, remanded
no. 120,768—july 10, 2020

FACTS: Jury convicted Williams of rape of 13-year old girl. During trial State introduced DNA results of one of multiple swabs taken from victim. Sentencing court imposed concurrent hard-25 life sentences, but journal entry also stated that Williams was subject to lifetime postrelease supervision for each crime. Williams filed pre-sentence motion for postconviction DNA testing of all swabs. District court summarily denied both that motion and Williams’ post-sentencing motion for reconsideration, stating only that the motion was unripe and K.S.A. 2019 Supp. 21-2512(a) did not apply. Williams appealed claiming: (1) district court erred by allowing State to exercise a peremptory strike in the midst of jury selection and prior to defense questioning of the jury panel; (2) verdict form which placed the line for finding the defendant “guilty” above “not guilty” infringed the presumption of innocence; (3) cumulative effect of these two errors denied him a fair trial; (4) journal entry of sentencing erroneously included lifetime postrelease supervision; and (5) district court erred by summarily denying his motions for postconviction DNA testing. 

ISSUES: (1) Peremptory challenge; (2) verdict form; (3) cumulative error; (4) sentencing; (5)  postconviction motion for DNA testing

HELD: Timing of State’s peremptory challenge, though unusual, was not improper and did not violate Williams’ right to a fair trial. Each party voluntarily used one peremptory challenge before the State passed the jury for cause, and used their remaining peremptory challenges after Williams approved the jury. This did not violate Kansas case law or K.S.A. 22-3411a.

            Wording of the verdict form did not violate Williams’ presumption of innocence. Kansas Supreme Court cases have rejected William’s position.

            No errors shown for application of cumulative error doctrine.

            Williams’ convictions are affirmed but case is remanded to district court for correction of error in the sentencing journal entry. A sentencing court cannot order lifetime postrelease supervision when a person has been convicted of an off-grid crime. And the journal entry erroneously recorded the effective sentence announced from the bench.

            Because district court did not rule on Williams’ motion until after pronouncing sentence, the motion was not “unripe.” District court’s summary denial of the request for postconviction DNA testing is reversed. Case is remanded so district court can articulate its findings and conclusions under the procedure outlined by Kansas statutes and Kansas Supreme Court caselaw.        

STATUTES: K.S.A. 2019 Supp. 21-2512, -2512(a), -2512(a)(1)-(3), -2512(c); K.S.A. 22-3411a

 

 

 

 

 

Tags:  adoption  appellate procedure  board of tax appeals  criminal procedure  evidence  juries  jurisdiction  motions  procedures  Riley District Court  Sedgwick District Court  sentencing  statutes  taxation 

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July 2, 2020 Digests

Posted By Administration, Monday, July 6, 2020

Kansas Supreme Court

Civil

TORTS
HAMMOND V. SAN LO LEYTE VFW POST #7515
CLOUD DISTRICT COURT—COURT OF APPEALS IS AFFIRMED,
DISTRICT COURT IS REVERSED, CASE REMANDED
NO. 118,698—JULY 2, 2020

FACTS: Jeffrey Hammond and his wife went to the San Lo Leyte VFW Post #7515. While at the VFW, Hammond encountered Travis Blackwood. The two men argued and Blackwood allegedly threatened to beat up Hammond in the bathroom. Hammond disengaged and returned to his table. Shortly thereafter, the manager of the VFW told Hammond that he needed to leave immediately and that he was banned from the club. The manager was backed up by Blackwood and his friends, who helped escort Hammond from the bar. As soon as the manager went back inside the bar, Blackwood and his friends physically assaulted Hammond. Hammond sued the VFW, but the district court granted summary judgment in favor of the VFW. The court of appeals reversed, finding that summary judgment was inappropriate. The VFW's petition for review was granted.

ISSUE: (1) Whether VFW owed a duty to Hammond

HELD: Kansas generally follows the Restatement (Second) of Torts § 344 regarding the scope of liability of owner/operators of commercial enterprises when it comes to acts of third persons. In order to be liable, the owner need not directly witness a physical altercation. Instead, a totality of the circumstances test is used to look at factors in addition to a prior attack. By granting summary judgment, the district court cut off analysis of whether an attack such as the one Hammond suffered was foreseeable. The VFW owed Hammond a duty to protect him from the dangerous acts of other bar patrons. Questions that must be answered on remand include whether Hammond's injury was foreseeable and whether the VFW breached its duty to Hammond.

STATUTES: No statutes cited.

criminal 

appeals—constitutional law—criminal procedure—motions—sentencing—statutes
state v. bradford
dickinson district court—affirmed
no. 120,683—july 2, 2020

FACTS: Bradford’s conviction on charges of capital murder, aggravated robbery, aggravated burglary, and felony theft resulted in 2003 resentencing for capital murder and the grid crimes. District court denied Bradford’s 2018 motion to correct an illegal sentence in which Bradford challenged his hard 40 sentence for capital murder. On appeal he argued for first time that the original and resentencing courts improperly classified his prior Missouri burglary convictions as person felonies, citing State v. Wetrich, 307 Kan. 552 (2018).

ISSUE: (1) Motion to correct an illegal sentence

HELD: Bryant’s arguments fail because his sentence was not illegal when imposed. Under State v. Murdock, 309 Kan. 585 (2019)(Murdock II), State v. Weber, 309 Kan. 1203 (2019), and State v. Bryant, 310 Kan. 920 (2019), Bradford failed to establish the district court imposed an illegal sentence for purposes of K.S.A. 22-3504.

STATUTES: K.S.A. 2019 Supp. 21-6804, 22-3504(a), -3504(c)(1), -3504(c)(2), -3504(d), -3601(b)(3); K.S.A. 2018 Supp. 21-6811(e)(3), 22-3504(1), -3504(3); K.S.A. 21-3715, -3716, -4704, -4711(e), 22-3504; K.S.A. 21-4701 et seq., -4711(e) (Furse 1995)

appeals—criminal procedure—evidence—jury instructions—statutes
state v. gibson
riley district court—affirmed in part, vacated in part
no. 119,993—july 2, 2020

FACTS: State charged Gibson with first-degree felony murder and child abuse. A defense-hired psychologist (Dr. Steffen) interviewed Gibson and gave his report to a defense pathologist and to the State. Based on K.S.A. 60-437(b), district court held there was a knowing and voluntary waiver of privilege and allowed Dr. Steffen to testify about a statement Gibson made during the interview. Jury convicted Gibson as charged. Sentence imposed included hard 25 sentence for felony murder, consecutive 34-month prison term for child abuse, and lifetime postrelease supervision. On appeal Gibson claimed: (1) trial court erroneously held that Gibson waived a privileged communication with Dr. Steffen; (2) there was insufficient evidence that Gibson’s action was knowingly done and cruel; (3) use of “should” in jury instruction on State’s burden of proof discouraged jury from exercising its nullification power; and (4) cumulative error denied him a fair trial. He also claimed the sentencing court improperly imposed lifetime postrelease supervision instead of lifetime parole.

ISSUES: (1) Psychologist-client privilege waiver; (2) sufficiency of the evidence; (3) jury instruction—burden of proof; (4) cumulative error, (5) sentencing

HELD: District court did not err by allowing Dr. Steffen to testify to Gibson’s statement made during the interview. As to privilege issue, K.S.A. 74-5323(a)(communications with licensed psychologist) applies to this case, not K.S.A. 65-5810(a)-(b)(communications with licensed professional counselors). As to waiver, Gibson’s reliance on State v. Foster,  259 Kan. 198 (1996), is flawed and Foster is distinguished. District court’s ruling based on K.S.A. 60-437 is not challenged, and Gibson’s challenge under K.S.A. 2019 Supp. 60-426a(a), raised for first time on appeal, was not preserved.

            Totality of Gibson’s statements combined with other circumstantial evidence was sufficient to establish the required mental state element that Gibson’s action was knowingly done and cruel as required by K.S.A. 2019 Supp. 21-5602(a)(3).

            As held in State v. Patterson, 311 Kan. 59 (2020), it is not a misstatement of law to tell a jury “If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.”

            No trial errors found for application of the cumulative error doctrine.

            District court had no authority to order a term of lifetime postrelase supervision along with an off-grid, indeterminate life sentence. That portion of Gibson’s sentence is vacated.

STATUTES: K.S.A. 2019 Supp. 21-5202(i), -5402(a)(2), -5602(a)(3), 22-3212(c)(2), 60-426a(a); K.S.A. 22-3219(2), 60-437, -437(b), 65-5802(b), -5810, -5810(a), -5810(b), 74-5323, -5323(a)

constitutional law—criminal procedure—double jeopardy—jury instructions— trials
state v. kornelson
reno district court—affirmed; court of appeals—affirmed
no. 118,091—july 2, 2020

FACTS: State charged Kornelson in part with felony driving under the influence (DUI), under alternative theories of driving with excessive blood or breath alcohol concentration, and driving while incapable of safely operating a vehicle because of alcohol impairment. First trial ended when court declared a mistrial without objection from State or Kornelson when jury reported a deadlock on the DUI charge. Second jury convicted Kornelson on both DUI theories and on an open container charge. On appeal, Kornelson claimed for first time that the second trial violated his right against double jeopardy because the record did not reflect a “manifest necessity” for the mistrial. He also claimed the jury instruction on State’s burden of proof improperly discouraged jury from exercising its nullification power. Court of appeals affirmed in unpublished opinion, finding Kornelson failed to show that prosecutorial conduct “goaded” him into not objecting to the mistrial.  Review granted.

ISSUES: (1) Double jeopardy; (2) jury instruction—burden of proof

HELD: The second trial did not violate Kornelson’s double jeopardy rights. If a district court declares a jury deadlocked and orders a mistrial when the defendant does not object or consent to the mistrial, a retrial should be permitted only when there was a manifest necessity for the court’s action. Contrary holding in State v. Graham, 277 Kan. 121 (2004), is overruled. Given the circumstances in this case, coupled with the deference and discretion Kansas caselaw affords the trial judge making these decisions, the record supports the determination that the jury was deadlocked under the manifest necessity standard.

            As held in  State v. Patterson, 311 Kan. 59 (2020), it is not a misstatement of law to tell a jury “If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.         

STATUTES: K.S.A. 2019 Supp. 8-1017(a)(4), -1567(a)(2), -1567(a)(3). -1599(b); K.S.A. 20-3018(b), 60-2101(b)

Tags:  Appeals  Cloud District Court  Constitutional Law  Criminal Procedure  Dickinson District Court  Double Jeopardy  Evidence  Jury Instructions  Motions  Reno District Court  Riley District Court  Sentencing  Statutes  Torts  Trials 

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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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June 12, 2020 Digests

Posted By Administration, Monday, June 15, 2020

Kansas Supreme Court

 

criminal 

attorneys and clients—criminal procedure—motions—sentencing
state v. adams
sedgwick district court—affirmed
no. 120,475—june 12, 2020

FACTS: District court allowed Adams to dismiss his appointed attorney and to proceed pro se at trial, resulting in plea agreement for guilty plea to criminal charges including premeditated first-degree murder. His request for reappointment of attorney for sentencing was granted. Sentence was imposed, which included a hard 50 sentence, following the plea agreement. Adams later filed motion to withdraw plea stating he was prepared to offer evidence from Iowa and Kansas departments of corrections of his unmedicated schizophrenia to show his plea was involuntary. He also filed K.S.A. 60-1507 motion alleging appointed counsel was ineffective because he did not address at sentencing whether Adams had an unmedicated mental health diagnosis, or have Adams undergo a mental health evaluation. District court held preliminary hearing with new appointed counsel and denied both motions. Adams appealed.

ISSUES: (1) Post-sentence motion to withdraw plea; (2) ineffective assistance of counsel at sentencing

HELD: District court properly concluded there was no manifest injustice because even if Adams had been allowed to present evidence regarding his previous mental health status, that diagnosis was not dispositive and the overall record would still conclusively show he was entitled to no relief.

            Under totality of circumstances, appointed counsel’s decision to forego a mental health evaluation of Adams does not constitute deficient representation when record shows Adams was sufficiently engaged in a rational, thoughtful, knowing way throughout the proceeding. There were no red flags in the record to suggest appointed counsel should have investigated Adams’s mental health. Adams’s reliance on “duty to investigate” in State v. Orr, 262 Kan. 312 (1997), is misplaced.

STATUTES: K.S.A. 2019 Supp. 22-3210(d)(2); K.S.A. 22-3301(1), 60-1507

criminal law—criminal procedure—evidence—statutes
state v. dinkel
saline district court—remanded with directions; court of appeals—reversed
no. 113,705—june 12, 2020

FACTS: Jury convicted a school counselor of two counts of rape of 13-yr-old boy (K.H.). Dinkel appealed on claims related to her defense that the K.H. had raped and then blackmailed her into continuing sexual encounters. Dinkel argued the district court’s exclusion of this evidence violated evidentiary rules and her constitutional right to present a defense. Court of appeals affirmed in unpublished opinion, concluding the rape of a child has no mental culpability requirement thus Dinkel’s intent was irrelevant. Review granted.

ISSUE: K.S.A. 2012 Supp. 21-5503(a)(3) - Evidence relevant to voluntary act requirement

HELD: Court of Appeals erred in concluding that whether K.H. forced the sexual encounter was irrelevant. As defined in K.S.A. 2012 Supp. 21-5503(a)(3), rape of a child under age 14 requires a voluntary act on the part of the defendant. Dinkel’s claim that she was forcibly raped is relevant since the rape of Dinkel negates the voluntary act requirement of rape of a child under 14. Jurisdiction retained while case is remanded to district court for Van Cleave hearing to determine whether defense trial counsel was ineffective for failing to argue the State never established the voluntary act requirement.  

STATUTE: K.S.A. 2012 Supp. 21-5201, -5202, -5202(a), -5202(b), -5202(h), -5202(d), -5203(b), -5501(a), -5503(a)(3)

constitutional law—criminal procedure—preemption—statutes
state v. Garcia
johnson district court—affirmed; court of appeals—affirmed
no. 112,502—june 12, 2020

FACTS: Kansas Supreme Court reversed Garcia’s jury conviction for identity theft, holding prosecution based on the use of his W-4 form was preempted by the Immigration and Reform and Control Act (IRCA). State v. Garcia, 306 Kan. 1113 (2017). State filed writ of certiorari in this and companion cases. United States Supreme Court reversed and remanded the state supreme court’s judgment, holding state law prosecutions were not preempted by the IRCA.

ISSUE: PreemptionImmigration Reform and Control Act of 1986

HELD: Consistent with Kansas v. Garcia, 589 U.S. __ (2020), a Kansas prosecution for identity theft or making false information based on information a defendant provides on employment forms, with the exception of the I-9 form, is not preempted by the IRCA. Review of whether there was sufficient evidence of intent to defraud, and whether district court’s failure to give unanimity instruction was clearly erroneous, was improvidently granted. These issues are not addressed on the merits.

STATUTES: 8 U.S.C. § 1324a(b)(5); K.S.A. 2012 Supp. 21-6107

constitutional law—evidence—motions
state v. Glover
douglas district court—reversed; court of appeals—affirmed
no. 116,446—june 12, 2020

FACTS: District court granted Glover’s motion to suppress evidence obtained during a traffic stop, finding the officer lacked reasonable suspicion of illegal activity when he stopped the truck in violation of Fourth Amendment. Court of Appeals reversed. State v. Glover,  54 Kan. App. 2d 377 (2017). Kansas Supreme Court reversed and affirmed the district court’s suppression ruling. 308 Kan. 590 (2018). State’s writ of certiorari granted.

ISSUE: Fourth Amendmenttraffic stop

HELD: Consistent with Kansas v. Glover, 589 U.S. __ (2020), an investigative traffic stop made after running a vehicle’s license plate and learning the registered owner’s driver’s license has been revoked is reasonable under the Fourth Amendment if the officer lacks information negating an inference that the owner is driving the vehicle. Here, the stipulated facts reveal no information known by the deputy sufficient to rebut that reasonable inference. Kansas Supreme Court’s judgment is vacated and case is remanded to district court for further proceedings.

STATUTES: None

constitutional law—criminal procedure—preemption—statutes
state v. morales
johnson district court—affirmed; court of appeals—affirmed
no. 111,904—june 12 2020

FACTS: Kansas Supreme Court reversed Morales’ convictions for identity theft and making a false information, holding prosecution based on use of a Social Security number belonging to another person for employment was preempted by the Immigration and Reform and Control Act (IRCA). State v. Morales, 306 Kan. 1100 (2017). State filed writ of certiorari in this and companion cases. United States Supreme Court reversed and remanded the state supreme court’s judgment, holding state law prosecutions were not preempted by the IRCA.

ISSUE: PreemptionImmigration Reform and Control Act of 1986

HELD: Consistent with Kansas v. Garcia, 589 U.S. __ (2020), a Kansas prosecution for identity theft or making false information based on information a defendant provides on employment forms, with the exception of the I-9 form, is not preempted by the IRCA. Review of whether there was sufficient evidence of intent to defraud was improvidently granted. This issue is not addressed on the merits.

STATUTE: 8 U.S.C. § 1324a(b)(5)

criminal procedure—restitution—sentencing
state v. tucker
wyandotte district court—reversed
no. 119,242—june 12, 2020

FACTS: Tucker pled guilty to one count of capital murder and was sentenced to prison for life without parole. District court ordered payment of $5,000 in restitution without an explicit order for payment during Tucker’s incarceration, and acknowledged that restitution will never be paid. Tucker appealed.

ISSUE: Restitutionunworkable plan

HELD: Under circumstances in this case, district court abused its discretion by ordering an indigent criminal defendant sentenced to life in prison without possibility of parole to pay restitution even while recognizing the restitution would not be paid. State v. Holt, 305 Kan. 839 (2017), State v. Shank, 304 Kan. 89 (2016), and State v. Alcala,  301 Kan. 832 (2015), are distinguished. Restitution is the rule, and unworkability is the exception. Here, Tucker met the burden of establishing that the restitution plan was unworkable. Restitution order is reversed.

STATUTE: K.S.A. 2015 Supp. 21-6604(b)(1)

 

Kansas Court of Appeals

Civil

ADMINISTRATIVE LAW—JURISDICTION
BRUNGARDT V. KANSAS DEPARTMENT OF REVENUE
FINNEY DISTRICT COURT—REVERSED AND REMANDED
NO. 120,409—JUNE 12, 2020

FACTS: Corporal Kerley arrested Brungardt for driving under the influence. Corporal Kerley administered a breath test, following the mandatory procedures for the Intoxilyzer 9000 machine. The machine allows officers to fill out the required forms—including the DC-27 certification form—electronically. Because his blood-alcohol level exceeded legal limits, Brungardt's driver's license was administratively suspended by the Kansas Department of Revenue. In requesting an administrative hearing, Brungardt claimed, among other things, that the DC-27 form was invalid because it lacked an original, non-electronic signature. Although the hearing officer affirmed his suspension, the district court reversed during judicial review. The court found no flaws in Corporal Kerley's performance but ruled that Corporal Kerley had physically signed the machine when he created his electronic signature profile, before Brungardt's test was performed. K.S.A. 8-1002(b) establishes that certification of the DC-27 form occurs upon signing, and the district court reasoned that Corporal Kerley signed a blank page when he established his signature profile. The department appealed.

ISSUES: (1) Jurisdiction; (2) validity of electronic signature

HELD: Brungardt's petition for judicial review included his claim that the DC-27 form was invalid. Even though he didn't argue the exact grounds relied on by the district court when overturning the suspension, Brungardt gave adequate notice that the validity of the DC-27 was in question. This gave the district court jurisdiction to rule. "Signing" encompasses more activity than merely writing a name, and Kansas law recognizes electronic signatures. It is the intent of signing, not the physical form, which controls the effectiveness of the signature. Corporal Kerley followed the procedures of K.S.A. 8-1002(b) and affixed his signature when done. The district court improperly interpreted the statute and erred by reversing the suspension of Brungardt's driver's license.

STATUTES: K.S.A. 2019 Supp. 8-1001, -1002(a), -1002(b), -1002(f); K.S.A. 77-614(b)(6)

Criminal

EQUAL PROTECTION—SEX CRIMES
STATE V. LITTLE
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 120,214—JUNE 12, 2020

FACTS: Little was convicted of multiple, high-level felonies, including rape and aggravated criminal sodomy. These convictions meant that on top of his prison sentence, Little was given a lifetime term of postrelease supervision. Little appealed, arguing that this lifetime term of postrelease violated his right to equal protection.

ISSUE: (1) Equal protection

HELD: Equal protection requires that similarly situated people be treated alike. Little compares his postrelease term to the shorter terms given to people who are convicted of other serious felonies, like murder. But sex offenders are not similarly situated to people convicted of murder. Individuals convicted of certain sex offenses have much higher rates of recidivism, and the lifetime term of postrelease supervision serves the dual purpose of allowing rehabilitation while also protecting the public from future offenses.

STATUTE: K.S.A. 2008 Supp. 22-3717(d)(1)(G)

Tags:  administrative law  Attorneys and Clients  Constitutional Law  criminal law  criminal procedure  equal protection  evidence  jurisdiction  motions  preemption  restitution  sentencing  sex crimes  statutes 

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June 5, 2020 Digests

Posted By Administration, Tuesday, June 9, 2020

Kansas Supreme Court

 

Civil

TRUSTS
IN RE ST. CLAIR TRUST REFORMATION
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 120,050—JUNE 5, 2020

FACTS: Jill St. Clair executed a trust agreement in September 2003. St. Clair's husband, William, was named a life beneficiary of the trust's income. Upon his death, the trust's income would be distributed to Jill and William's children and grandchildren, with the principal eventually being distributed to the grandchildren or their estates. William had previously created his own trust with an identical distribution scheme. Both trusts were funded with identical amounts, and both trusts were prepared by the same attorney. Mr. Davidson drafted the trusts to make sure that the trust assets were not included in either William or Jill's taxable estates. At the time the trust was executed, Jill believed it contained the necessary provisions for the trust assets to be excluded from both taxable estates. Unfortunately, the trust contained a drafting error which resulted in the trusts becoming reciprocal, with the assets of Jill's trust being included in William's estate upon his demise, and vice versa. The trust as written did not accurately express Jill's intent. In order to correct the drafting error, Jill and her trustee petitioned the district court for an order reforming Jill's trust to include provisions which would prevent the trusts from becoming reciprocal. The proposed amendment was served on all beneficiaries, with no objection. The district court ordered that the trust be reformed to correct the scrivener's error.

ISSUE: (1) Whether trust should have been reformed

HELD: The district court's decision was appealed in order to satisfy the requirements of Commissioner v. Estate of Bosch, and the case was transferred from the Kansas Court of Appeals. The record on appeal shows that Jill and the trustee demonstrated by clear and convincing evidence that Jill's intent in creating and funding the trust was adversely affected by a drafting error, making it necessary to reform the trust. Reformation destroys the economic symmetry of the trusts, allowing the trust to be consistent with Jill's original intent. The reformation is affirmed.

STATUTES: K.S.A. 2018 Supp. 20-3017; K.S.A. 58a-415

criminal

appeals—criminal procedure—evidence—juries—verdicts
state v. brown
cowley district court—affirmed; court of appeals—reversed
no. 115,817—june 5, 2020

FACTS: State charged Brown with attempted second-degree intentional murder. District court instructed jury on that charge and the lesser offense of attempted voluntary manslaughter. Verdict form returned by the jury, however, found “the defendant guilty of the lesser offense of attempted involuntary manslaughter as set forth in Instruction No. 7,” an instruction that referred to the correct crime of attempted voluntary manslaughter. This verdict inconsistency was not caught until sentencing, well after jury was discharged. District court sentenced Brown for the instructed crime, attempted voluntary manslaughter. Brown appealed. In unpublished opinion, Court of Appeals reversed and remanded for a new trial on that count, holding the written language of the verdict controlled and district court was powerless to deviate from its literal meaning. Panel in a strikingly similar case held the district court could reasonably interpret the verdict in light of the record. State v. Rice, (2011)(unpublished opinion). State’s petition for review granted to resolve this panel split.

ISSUE: Ambiguous verdict

HELD: Based on Kansas caselaw and persuasive decisions from other jurisdictions, general approach in Rice is correct. Lower court’s decision is reversed with caution. An ambiguous verdict can be reasonably interpreted in light of the charging document, jury instructions, and record as a whole to determine and give effect to jury’s intent. When such intent is clear, a mistaken description of the crime of conviction contained in the verdict form may be discarded as surplusage when the verdict form also refers to the correct charge by pointing back to the charging document or the jury instruction. The strong presumption in favor of the literal text of the jury verdict as the surest guide to jury’s intentions can only be overcome when the record as a whole clearly demonstrates a different intent and district court is convinced beyond a reasonable doubt that portions of the verdict text are inconsistent with that intent. An appellate court’s review of a district court’s application of the surplusage rule is de novo. In this case, district court did not err when it discarded the “in-“ prefix from the verdict form as mere surplusage.

STATUTE: K.S.A. 22-3421

criminal procedure—evidence—motions
state v. hachmeister
shawnee district court—affirmed
no. 114,796—june 5, 2020

FACTS: Hachmeister was convicted of premeditated murder for killing his mother. On appeal he claimed the district court abused its discretion by admitting evidence under K.S.A. 60-455 of mother thinking that Hachmeister had stolen her wedding ring, and of child pornography found on Hachmeister’s computer and the charges associated with that possession.  He also claimed eight instances of error during prosecutor’s closing argument.

ISSUES: (1) K.S.A. 60-455 evidence; (2) prosecutorial error

HELD: No error in district court’s admission of the 60-455 evidence. Probative value of the wedding ring evidence substantially outweighed any prejudice where the confrontation surrounding the missing wedding ring was key evidence of motive. And evidence of child pornography on Hachmeister’s computer and charges for possessing this porn was extremely probative in identifying Hachmeister as author of anonymous letters written by the “real killer.”

            Each allegation of prosecutorial error is examined finding only one error. Prosecutor’s comment that victim “could breathe just fine” exceeded the prosecutor’s ability to draw inferences from the evidence. This error was harmless in light of the trial as a whole and the overwhelming evidence against Hachmeister..

STATUTES: K.S.A. 2019 Supp. 60-455(b)

Tags:  appeals  Cowley District Court  criminal procedure  evidence  juries  motions  Sedgwick District Court  Shawnee District Court  verdicts 

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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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