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June 1, 2018 Digests

Posted By Administration, Tuesday, June 5, 2018
Updated: Tuesday, June 5, 2018

Kansas Supreme Court

Criminal

criminal law—criminal procedure—prosecutors—statutes
state v. king
wyandotte district court—affirmed
No. 116,146—june 1, 2018

FACTS: King and a codefendant were jointly tried on charges arising from a string of violent robberies. Jury convicted King of attempted capital murder, aggravated robbery, aggravated battery, conspiracy to commit aggravated robbery, and criminal possession of a firearm. Two weeks later King filed motion for a new and severed trial, citing statements by codefendant’s attorney during closing argument. District court denied the motion. On appeal King claimed:  (1) insufficient evidence that he was one of the robbers, and no evidence of a formal agreement to support the conspiracy conviction; (2) prosecutor improperly interjected his personal beliefs during closing argument; (3) district court erred by denying King’s motion for a new trial; and (4) cumulative error denied him a fair trial.

ISSUES: (1) Sufficiency of the evidence, (2) prosecutorial Error, (3) motion for New and severed trial, (4) cumulative error

HELD: Sufficient evidence supported the convictions. Under facts in case, a rational fact-finder could have found beyond a reasonable doubt that King was one of the robbers, and there was strong circumstantial evidence of an agreement to commit a string of robberies.

Prosecutor’s statements in closing argument are examined in detail. Prosecutor’s use of “I submit” was not error. Two of prosecutor’s “I think” statements” impermissibly conveyed the prosecutor’s opinion but were not error in this cases which occurred before Kansas Supreme Court cases put prosecutor’s on notice that such statements were improper. Three uses of “we know” were error, even if the inferences being drawn were reasonable, but these errors were harmless beyond a reasonable doubt.

King failed to request a severance before or during trial, did not object to the codefendant’s closing argument statements, and first asked for severance in his motion for a new trial. By failing to comply with K.S.A. 22-3204, King waived his ability to seek severance.

Aggregate effect of the three harmless prosecutorial errors found in this case were harmless beyond a reasonable doubt.  

STATUTES: K.S.A. 2017 Supp. 22-3601(b)(3); K.S.A. 2014 Supp. 21-5302(a); K.S.A. 22-3202(3), -3204 

criminal law—jury instructions­ prosecutors
state v. nesbitt
sedgwick district court—affirmed
No. 116,550—june 1, 2018

FACTS: Nesbitt convicted of felony murder, rape, and aggravated burglary. The crimes arose from a violent attack on a 100-year-old victim in her home, and the victim’s subsequent death. On appeal Nesbitt claimed:  (1) insufficient evidence supported his felony murder conviction because the victim’s death 21 days later was not within the res gestae of the underlying felony of rape, and no direct causal connection between the rape and the victim’s death; (2) insufficient evidence supported his aggravated burglary conviction because no evidence that he entered the home to commit rape; (3) prosecutor’s reference in closing argument to victim as a family “treasure” was improper attempt to inflame the passions of the jury; (4) trial judge erred by refusing to give a defense-proposed instruction on a race-switching exercise; and (5)  cumulative error denied him a fair trial.

ISSUES: (1) Sufficiency of the evidencefelony murder, (2) sufficiency of the evidence - aggravated burglary, (3) prosecutorial error, (4) race-switching instruction, (5) cumulative error

HELD: No legal merit to Nesbitt’s res gestae argument. Sufficient evidence supported Nesbitt’s conviction on felony murder, including the foreseeability of a rape victim’s death 21 days after the attack, when injuries the victim suffered caused pain that immobilized her, giving rise to the development of fatal blood clots.

Sufficient evidence supported jury’s verdict that rape, not theft, was the attacker’s goal on entering the home. Victim’s house was tidy and orderly but for the mutilated back door through which the attacker entered and the disorganized bedroom where the rape occurred. Nothing to indicate someone entered the house to commit theftnothing was missing or moved, including valuable items in plain view.

Prosecutor’s challenged remarks were improper, with no purpose other than inflaming passions of jurors, but under facts in case no reversible error.

No Kansas case found in which the proposed race-switching instruction has been given. Federal and state court cases are reviewed, with majority rejecting the instruction. Here, the proposed instruction was not legally appropriate under Kansas law, thus district judge did not err in refusing to give it.

The single error found in this case does not support a cumulative error claim.

STATUTES: K.S.A. 2014 Supp. 21-5402(a)2), -5402(c)(1)(E); K.S.A. 2013 Supp. 21-5807(b)(1)

 

appeals—criminal procedure—motions—statutes
state v. parks
reno district court—affirmed
No. 116,172—june 1, 2018

FACTS: Parks convicted in 1997 of the 1978 premeditated first-degree murder of his wife. State v. Parks, 265 Kan. 644 (1998). Over 16 years later, Parks filed pro se “Motion to Set Aside a Void Judgment,” claiming his no contest plea was not knowing and intelligent. Appointed counsel argued the motion should be treated as one to withdraw Parks’ plea. District court agreed and denied the motion, finding it untimely with no showing of excusable neglect for the delay. Parks appealed, arguing for first time that district court should have construed the pro se motion as one under K.S.A. 60-1507 that would have been timely under the manifest injustice exception.

ISSUE: Motion to withdraw plea

HELD: Under facts in the case, invited error doctrine applies where Parks repeatedly invited district court to construe a pro se motion as a motion to withdraw plea. Argument that the district court should have construed and treated Parks’ motion as a K.S.A. 60-1507 motion is rejected. District court correctly held the motion was untimely filed. Parks failed to meet his burden of demonstrating excusable neglect to allow the out-of-time motion to withdraw his plea.

STATUTES: K.S.A. 2017 Supp. 22-3210, -3210(e)(1), -3210(e)(2), -3601; K.S.A. 22-3210, 60-1507; K.S.A. 21-3401, -4501 (Weeks, 1974)

Kansas Court of Appeals

Civil

DUE PROCESS—WORKERS COMPENSATION
PARDO V. UNITED PARCEL SERVICE
WORKERS COMPENSATION BOARD—REVERSED AND REMANDED
NO. 116,842—JUNE 1, 2018

FACTS: Pardo is a long-term employee of UPS, and he continues to work there to this day. Pardo injured his shoulder in 2013 during the course of his employment. The injury was surgically repaired and the parties agreed to a 15% permanent partial impairment rating. Pardo injured his left shoulder again in 2015 while at work. Surgery revealed a new injury. It was treated and Pardo returned to work, but he continued to have pain and a limited range of motion. All of the physicians who examined Pardo agreed that he had residual issues with the shoulder that warranted both future medical treatment and an impairment rating. An amendment to K.S.A. 2014 Supp. 44-510d(b)(23) required the physicians to consult the American Medical Association Guides to the Evaluation of Permanent Impairment, Sixth Edition, which allows for only one lifetime impairment rating with no exception made for a physician's skill, experience, expertise, training, or judgment. Based on that decree, Pardo was assigned a zero percent impairment rating. The ALJ denied Pardo's request for compensation. That finding was affirmed by the Board, and Pardo appealed.

ISSUE: (1) Constitutionality of K.S.A. 2014 Supp. 44-210d(b)(23)

HELD: UPS provided no evidence to prove that the change from the 4th edition of the AMA Guides to the 6th edition was reasonably necessary to promote the general welfare of the people of Kansas. But the State did prove that the amendment was made because the 6th edition is more medically sound than the 4th edition. Under the Workers Compensation Act, Pardo surrendered his right to seek a common-law award from his employer. When the 6th edition of the Guides is used, Pardo gets nothing in return for that surrender. This leaves Pardo with no remedy and renders K.S.A. 2014 Supp. 44-510d(b)(23) unconstitutional as applied to him. The remedy is to sever the portion of the statute that is unconstitutional as applied to Pardo. The case is remanded for further proceedings.

STATUTES: Kansas Constitution Bill of Rights, § 1, §18, Article 2, § 1, Article 3, § 1; K.S.A. 2014 Supp. 44-501(e), -501b(d), -510d(b)(23); K.S.A. 44-574(b)

ATTORNEY FEES—GRANDPARENT VISITATION
IN RE PATERNITY OF M.V.
RENO DISTRICT COURT—REVERSED AND REMANDED
NO. 118,189—JUNE 1, 2018

FACTS: Father's paternity was established in 2009. Over the years, mother and father had many disagreements about custody, parenting time, and child support. In 2017, the paternal grandmother filed a motion requesting grandparent visitation of one weekend per month. Mother objected and asked for attorney fees, claiming that no provision in the Kansas Parentage Act allows for grandparent visitation. After a hearing, the district court concluded that M.V. had a substantial relationship with grandmother and that visitation was in her best interests. The district court granted visitation using grandmother's proposed schedule and denied mother's request for attorney fees. Mother asked the district court to reconsider and proposed a once-per-month visit of five hours, versus an entire weekend. Mother based this request on the fact that grandmother had an unknown man living with her and because grandmother took M.V. to visit father in jail, even though father was facing child sex abuse charges and the visits violated a court order. The district court denied reconsideration and mother appealed.

ISSUES: (1) Due process violation; (2) attorney fees

HELD: Grandmother does have the right to seek visitation in the context of a paternity action. And grandmother satisfied her burden to prove that there was a substantial relationship and that visitation was in M.V.'s best interests. But in any grandparent visitation action, the district court must presume that a fit parent is acting in the child's best interests and must give special weight to the parent's proposed visitation schedule. There is no indication in this case that the district court ever properly evaluated mother's proposed schedule. This case must be remanded in order to allow the district court to make all necessary findings about mother's proposed schedule, which cannot be rejected unless it is found to be unreasonable. On remand, the district court must also follow the statute when evaluating mother's request for attorney fees.

STATUTE: K.S.A. 2017 Supp. 23-3301, -3301(b), -3304

Tags:  attorney fees  grandparent visitation  Reno 

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August 18, 2017 Digests

Posted By Administration, Tuesday, August 22, 2017

Kansas Supreme Court

Attorney Discipline

ORDER OF DISBARMENT
IN THE MATTER OF DANIEL L. BALDWIN
NO. 16283 – AUGUST 16, 2017

FACTS: In a letter signed August 16, 2017, Daniel L. Baldwin, attorney licensed to practice law in Kansas, voluntarily surrendered his license to practice law in Kansas. At the time Baldwin surrendered his license a formal hearing was pending regarding two docketed disciplinary complaints. The complaints involved issues of competence, diligence, safekeeping property, and fees.

HELD: The court examined the files of the office of the Disciplinary Administrator and found that the surrender of Baldwin's license should be accepted and that he should be disbarred.

 

Criminal

constitutional law—criminal procedure—sentences—statutes
State v. shaylor
reno district court—affirmed on issues subject to review
court of appeals—affirmed on issues subject to review
no. 108,103—august 18, 2017

FACTS: Shaylor was convicted of manufacturing methamphetamine. Kansas Offender Registration Act (KORA) was subsequently amended to define an “offender” required to register as including Shaylor’s offense unless a court found the manufacturing of the controlled substance was for personal use. Shaylor was then convicted of failing to register as a drug offender. On appeal, she claimed the retroactive application of the KORA amendment violated the Ex Post Facto Clause, and also claimed for first time on appeal the district court’s finding as to whether Shaylor possessed drug precursors for personal use violated Apprendi. In an unpublished opinion, Court of Appeals affirmed on these issues. Review granted.

ISSUE: Kansas Offender Registration Act - Ex Post Facto and Apprendi

HELD: As set forth in State v. Meredith,  306 Kan. __ (2017), non-sex offenders seeking to avoid retroactive application of KORA provisions must, in order to satisfy “effects” prong of test in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), produce a record that distinguishes - by the “clearest proof”- KORA’s effect on those classes of offenders from the Act’s effects on sex offenders as a class. Record in Shaylor’s case failed to make this required showing. This also defeats her Apprendi claim about the district court’s finding as to personal use.

DISSENT (Beier, J., joined by Rosen and Johnson, JJ.): Dissent is consistent with votes in Meredith and State v. Huey, 306 Kan. __ (2017). The current KORA registration requirement is punishment in effect if not intent, whether claim is raised under Ex Post Facto Clause or Eighth Amendment. And it is no less so for a drug offender than a sex offender.

STATUTES: K.S.A. 2002 Supp. 22-4902; K.S.A. 20-3018(b), 22-4901 et seq., -4902(a)(11)(A), 60-2101(b)

  

Kansas Court of Appeals

 

Civil

IMMUNITY—NEGLIGENCE
WILLIAMS V. C-U-OUT BAIL BONDS
JOHNSON DISTRICT COURT—AFFIRMED
NO. 116,883—AUGUST 18, 2017

FACTS: The Williams family was at home when several armed representatives of C-U-Out Bail bonds came to their door searching for their daughter-in-law, who had absconded. Although they told the bond company that the daughter-in-law was not at the house, the company refused to leave and forced its way in with a steel battering ram. The Williamses called the police department for help. Overland Park police officers came near the scene but never on the Williams' property, and the officers watched while the bond company entered the home and allegedly threatened the occupants. The Williamses filed suit against both the bond company and the Overland Park Police Department. The district court granted the city's motion to dismiss for failure to state a claim, finding that the police officers who responded to the call owed no duty to the Williamses, and that the city was immune from liability under the discretionary function exception to the Kansas Tort Claims Act. The Williamses appealed.

ISSUES: (1) Proper standard of review; (2) did the police department owe a duty to the Williamses? (3) is there immunity under the KTCA?

HELD: Kansas has not yet adopted the federal standard of review for motions to dismiss. The court is not required to accept as true legal conclusions that are contained within the petition. Under the "public duty doctrine", a governmental agency owes a duty to the public at large rather than to individuals. Here, the officers' act of responding to a 911 call did not create a special relationship. Deciding whether to make an arrest is discretionary on the officers' part. Their investigation here is not meant to be subject to judicial review, and the district court properly found immunity under the KTCA.

STATUTES: K.S.A. 2016 Supp. 22-2202(m), 60-208(a), 75-6104(c), -6104(e), -6104(n); K.S.A. 13-1339, 22-2401, -2405(3), -2809

STATUTORY INTERPRETATION—ZONING
LAYLE V. CITY OF MISSION HILLS
JOHNSON DISTRICT COURT—REVERSED
NO. 116,095—AUGUST 18, 2017

FACTS: The Layles' fence at their residence did not meet zoning regulations in Mission Hills. But over 20 years, the Layles were given two variances to either repair or replace the fence, even though it would not meet regulations. In 2012, the Layles sought to remove and replace the pickets and rails of the fence without changing the fence posts. The city denied the request, finding that the work could not be authorized without approval from the Architectural Review Board and the Board of Zoning Appeals. After a number of appeals, the ultimate decision was that the proposed work was a replacement of the fence requiring new variances. The Layles appealed.

ISSUES: (1) Application of correct standard of review; (2) was the proposed work a repair or a replacement

HELD: An issue that requires a court to interpret regulatory or statutory criteria uses a de novo standard of review and not a review for reasonableness. Whether the proposed fence project constituted a repair or a replacement was actually a question of law. Repair of fence sections did not constitute a full replacement. Repairs do not require a variance and the city could have granted the building permit that was requested by the Layles.

STATUTES: K.S.A. 12-759(e)(1), -759(f)

CIVIL PROCEDURE—CONTRACTS—DIVORCE—EVIDENCE
IN RE MARRIAGE OF JOHNSTON
JOHNSON DISTRICT COURT—REVERSED AND VACATED
NO. 115,256—AUGUST 18, 2017

FACTS: The Johnstons divorced in 2011. Despite having significant assets and debts and highly technical military pay, the couple created a separation agreement without the assistance of counsel. They agreed that Jim would pay Pamela $1,000 per month from his military retirement pay for the rest of her life, unless she remarried. He also agreed to a lump-sum transfer of $100,000 from his retirement account. After 3 years, Jim motioned the district court to relieve him of his duty to pay Pamela $1,000 because, he alleged, Pamela was living in a marriage-like relationship. That motion was denied. But the district court sua sponte put a 121-month cap on Jim's maintenance obligation. Pamela did not appeal this order, but she did obtain counsel and sought to reopen the separation agreement regarding Jim's military retirement benefits. After hearing testimony, the district court divided Jim's military retirement benefits equally between both parties but did not alter the obligation to pay maintenance for 121-months. Jim appealed.

ISSUES: (1) Authority to modify property settlement agreement; (2) ability to modify earlier order on spousal maintenance

HELD: Authority to modify the separation agreement would have had to come from K.S.A. 60-260(b)(6). There was no ambiguity in the agreement or any evidence of mistake. But even if there was, Pamela failed to seek relief within one year. Because a more specific provision of K.S.A. 60-260(b) applied, Pamela is barred from using the catchall provision at 260(b)(6) in an attempt to circumvent the statutory time limits. The district court had no jurisdiction to modify the prior separation agreement and its order doing so is void. Parties may agree to extend maintenance beyond the 121-months mentioned in the statute.

DISSENT: (Leben, J.) The property settlement agreement was ambiguous, giving the district court jurisdiction to modify it under K.S.A. 60-260(b)(6).

STATUTES: K.S.A. 2016 Supp. 23-2712, -2801, -2904, 60-260(b); K.S.A. 60-260(b)

ATTORNEY FEES—JUDGMENT
RICHARDSON V. MURRAY
JOHNSON DISTRICT COURT—AFFIRMED IN PART, REVERSED IN PART, REMANDED
NO. 115,745—AUGUST 18, 2017

FACTS: The Richardsons purchased a home from the Murrays, and brought suit after experiencing water intrusion in the residence. Before trial, the Murrays submitted an offer of judgment and the Richardsons accepted it. After judgment was entered, the Richardsons sought attorney fees and expenses. The district court allowed court costs but not attorney fees, and the Murrays promptly tendered payment. The Richardsons failed to timely file a satisfaction of judgment. As a result, the Murrays sought an award of statutory penalties and attorney fees. The district court granted that motion and the Richardsons appealed.

ISSUES: (1) Decision on attorney fees and related expenses; (2) untimely satisfaction of judgment

HELD: The offer of judgment was silent on whether attorney fees were included with court costs. Generally, attorney fees are not part of costs and are available only if a statute or other authority defines costs to include attorney fees. As the offering party, the Murrays were obligated to make a clear and unambiguous offer. Because the offer was silent on this matter, the Richardsons were allowed to seek attorney fees outside the context of costs. Under the terms of the contract, the Murrays must reimburse the Richardsons for all reasonable attorney fees for work reasonably performed in pursuing relief. Filing a satisfaction of judgment would not have prevented the Richardsons from appealing the district court's denial of their request for attorney fees. For that reason, the district court did not err in assessing the statutory penalties against the Richardsons.

STATUTES: K.S.A. 2016 Supp. 60-254(a), -2002, -2003, -2803; K.S.A. 50-634(e) 

 

Criminal  

constitutional law—criminal procedure—evidence—Fourth Amendment—jury trial—search and seizure
state v. chavez-majors
butler district court—affirmed in part, reversed in part, remanded
no. 115,286—august 18, 2017

FACTS: Chavez-Majors had a motorcycle accident, and was unconscious when officer and EMS arrived at scene. Observing evidence that Chavez-Majors had been under the influence of alcohol, officer directed EMS to conduct warrantless blood draw. Test results showed twice the legal blood-alcohol limit. District court denied Chavez-Majors’ motion to suppress the test result, finding officer had probable cause with exigent circumstances to justify the warrantless search and seizure. Chavez-Majors was convicted at a bench trial of aggravated battery while driving under the influence (DUI). On appeal, he claimed for first time that he did not waive his right to a jury trial. He also claimed the district court erred by denying motion to suppress evidence that was unconstitutionally obtained.

ISSUES: (1) Waiver of right to jury trial, (2) motion to suppress blood draw evidence

HELD: Waiver claim was considered. Two-part test in State v. Irving, 216 Kan. 588 (1975), is applied finding Chavez-Majors did not knowingly and voluntarily waive right to jury trial. District court’s mention that plea agreement was in part “in contemplation of waiver of right to jury trial” did not satisfy Irving’s first requirement, and there was no compliance with Irving’s second requirement. The conviction was reversed and case was remanded to afford right to jury trial or to effect a valid waiver.

Consent exception, or applicability of Kansas implied consent statute, was not asserted  in this case, and third requirement of three-part test in Schrmerber v. California, 384 U.S. 757 (1966), was not challenged. The first two parts of the Schrmerber test were applied to the two claimed exceptions. Limited Kansas case law found applying Schmerber’s exigent circumstances requirement in warrantless blood draw DUI cases. Comparable U.S. Supreme Court reviewed for guidance, finding the metabolism of blood alcohol is a factor that can be considered. Under totality of circumstances in this case, district court’s conclusion that probable cause with exigent circumstances justified the warrantless blood draw was supported by substantial competent evidence.

STATUTES: K.S.A. 2014 Supp. 8-142, -262(a)(1), -1001 et seq., -1001(b)(2), 21-5413(b)(3)(A),  22-2502(a), 40-3104(d); K.S.A. 8-1567, 22-3403(1)

Tags:  Attorney Discipline  Butler  Johnson  Reno 

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August 11, 2017 Digests

Posted By Administration, Monday, August 14, 2017

Kansas Supreme Court

 

Criminal

 

constitutional law—criminal procedure—sentences—statutes
state v. burdick
riley district court—affirmed; court of appeals—affirmed
no. 110472 - august 11, 2017

FACTS: Burdick was convicted of a drug offense, and was required by Kansas Offender Registration Act (KORA) to register with sheriff within ten days of residing in the county. KORA was later amended to require registration updates within three business days. Burdick was subsequently arrested and charged with failing to timely update his registration. Burdick sought dismissal of the charge, arguing application of the amended registration period violated the Ex Post Facto Clause. District court denied the motion. Court of Appeals affirmed in unpublished opinion, holding the registration requirement was not punishment. Review granted.

ISSUE: Kansas Offender Registration Act - Ex Post Facto Claim

HELD: As set forth in State v. Meredith, 306 Kan. __ (2017), non-sex offenders seeking to avoid retroactive application of KORA provisions must, in order to satisfy the “effects” prong of test in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), produce a record that distinguishes - by the “clearest proof”- KORA’s effect on those classes of offenders from the Act’s effects on sex offenders as a class. Record in Burdick’s case is not sufficiently developed to satisfy the “clearest proof” standard.”  

DISSENT (Beier, J., joined by Rosen and Johnson, JJ.): Consistent with votes in State v. Petersen-Beard, 304 Kan. 192 (2016), State v. Reed, 306 Kan. __ (2017), and Meredith, finds the current KORA registration requirement is punishment in effect if not intent, whether claim is raised under Ex Post Facto Clause or Eighth Amendment. And it is no less so for a drug offender than a sex offender.

STATUTES: K.S.A. 2012 Supp. 22-4905(g); K.S.A. 2008 Supp. 22-4902(a)(11)(C); K.S.A. 22-4901 et seq., -4904(a)(2)

 

constitutional law—criminal procedure—sentences—statutes
state v. donaldson
sedgwick district court—affirmed—court of appeals—affirmed
no. 109,671—august 11, 2017

FACTS: On appeal Donaldson alleges in part his lifetime offender registration under Kansas Offender Registration Act (KORA) violates the Ex Post Facto Clause because at the time he committed the crimes, he would have been subject to registration only if the victim of the aggravated kidnapping charge was under the age of 18. Court of Appeals affirmed in unpublished opinion. Review granted.

ISSUE: Kansas Offender Registration Act - Ex Post Facto Claim

HELD: As set forth in State v. Meredith, 306 Kan. __ (2017), non-sex offenders seeking to avoid retroactive application of KORA provisions must, in order to satisfy “effects” prong of test in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), produce a record that distinguishes - by the “clearest proof”- KORA’s effect on those classes of offenders from the Act’s effects on sex offenders as a class. Record in Donaldson’s case is not sufficiently developed to satisfy the “clearest proof” standard.”

DISSENT (Beier, J., joined by Rosen and Johnson, JJ.): Consistent with votes in State v. Petersen-Beard, 304 Kan. 192 (2016), State v. Reed, 306 Kan. __ (2017), and Meredith, finds the current KORA registration requirement is punishment in effect if not intent, whether claim is raised under Ex Post Facto Clause or Eighth Amendment. And it is no less so for a drug offender than a sex offender.

STATUTES: K.S.A. 2011 Supp. 22-4906(d)(10); K.S.A. 2010 Supp. 22-4902(a)(4)(B), -4906(a); K.S.A. 22-4901 et seq.

 

constitutional law—criminal procedure—sentences—statutes
state v. hill
crawford district court—affirmed; court of appeals—affirmed
no. 111,226—august 11, 2017

FACTS: Hill was convicted of two drug offenses. District court required her to register as a violent offender, pursuant to the Kansas Offender Registration Act (KORA) as amended prior to Hill’s sentencing. On appeal Hill claimed the retroactive application of the registration requirement violated the Ex Post Facto Clause. Court of Appeals affirmed in an unpublished opinion. Review granted.

ISSUE: Kansas Offender Registration Act—Ex Post Facto Claim

HELD: As set forth in State v. Meredith,  306 Kan. __ (2017), non-sex offenders seeking to avoid retroactive application of KORA provisions must, in order to satisfy “effects” prong of test in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), produce a record that distinguishes - by the “clearest proof”- KORA’s effect on those classes of offenders from the Act’s effects on sex offenders as a class. Record in Hill’s case is not sufficiently developed to satisfy the “clearest proof” standard.”

DISSENT (Beier, J., joined by Rosen and Johnson, JJ.): Consistent with votes in State v. Petersen-Beard, 304 Kan. 192 (2016), State v. Reed, 306 Kan. __ (2017), and Meredith, finds the current KORA registration requirement is punishment in effect if not intent, whether claim is raised under Ex Post Facto Clause or Eighth Amendment. And it is no less so for a drug offender than a sex offender.

STATUTES: K.S.A. 2012 Supp. 22-4902(f)(2); K.S.A. 2009 Supp. 22-4902(a)(11)(B)

 

constitutional law—criminal procedure—sentences—statutes
state v. hirschberg
shawnee district court—
affirmed; court of appeals—affirmed
no. 109,689—august 11, 2017

FACTS: Hirschberg was convicted of a drug offense and was required under the Kansas Offender Registration Act (KORA) to register as a violent offender for 15 years instead of 10 years, pursuant to KORA as amended prior to his sentencing. On appeal Hirschberg claimed the retroactive application of the longer registration requirement violated the Ex Post Facto Clause. Court of Appeals affirmed in an unpublished opinion. Review granted.

ISSUE: Kansas Offender Registration Act - Ex Post Facto Claim

HELD: As set forth in State v. Meredith,  306 Kan. __ (2017), non-sex offenders seeking to avoid retroactive application of KORA provisions must, in order to satisfy “effects” prong of test in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), produce a record that distinguishes - by the “clearest proof”- KORA’s effect on those classes of offenders from the Act’s effects on sex offenders as a class. Record in Hirschberg’s case is not sufficiently developed to satisfy the “clearest proof” standard.”

DISSENT (Beier, J., joined by Rosen and Johnson, JJ.): Consistent with votes in State v. Petersen-Beard, 304 Kan. 192 (2016), State v. Reed, 306 Kan. __ (2017), and Meredith, finds the current KORA registration requirement is punishment in effect if not intent, whether claim is raised under Ex Post Facto Clause or Eighth Amendment. And it is no less so for a drug offender than a sex offender.

STATUTES: K.S.A. 2011 Supp. 22-4906(a)(1)(O); K.S.A. 22-4901 et seq.

 

constitutional law—criminal procedure—sentences—statutes
state v. huey
shawnee district court—affirmed as to issues subject to review
court of appeals—affirmed as to issues subject to review
no. 109,690—august 11, 2017

FACTS: Huey was convicted of robbery and aggravated burglary, and was ordered to register as a violent offender under Kansas Offender Registration Act (KORA) after district judge found Huey used a deadly weapon to commit those offenses. On appeal, Huey claimed for first time that the KORA registration requirement violated Booker/Apprendi because jury did not find he had used a deadly weapon.

ISSUES: Kansas Offender Registration Act—Apprendi

HELD: State v. Petersen-Beard, 304 Kan. 192, cert. denied (2016), held that KORA registration for sex offenders was not cruel and unusual punishment under Eighth Amendment.  This overturned caselaw that supported State v. Charles, 304 Kan. 158 (2016), thus Charles is not viable authority for Huey or other violent offenders as to whether KORA is punitive. That issue may be resolved only upon an evidentiary record supplying the clearest proof to overcome the legislature’s intent that KORA be a regulatory scheme that is civil and nonpunitive. Huey did not establish such a record in this case. District court’s offender registration order is affirmed.

DISSENT (Beier, J., joined by Rose and Johnson, JJ.): Would not explicitly or implicitly overrule Charles. Huey met any burden of proof he bears on whether the imposition of the registration requirement qualifies as punishment. Under Apprendi and its progeny, Huey’s registration requirement should be vacated because he cannot be subjected to that requirement on the basis of a judge-made fact finding that he used a deadly weapon.

STATUTES: K.S.A. 20-3018(b), 22-4901 et seq., 60-2101(b)

 

constitutional law—criminal procedure—sentences—statutes
state v. kilpatrick
reno district court—affirmed; court of appeals—affirmed
no. 111,055—August 11, 2017

FACTS: Kilpatrick filed motion to correct an illegal sentence, arguing the retroactive imposition of registration requirements under the Kansas Offender Registration Requirements (KORA) violated the Ex Post Facto Clause. District court denied the motion, agreeing with State’s arguments that KORA’s provisions are not punishment, and that Kilpatrick waived jurisdictional attacks on his sentence by not raising them in his case. Court of Appeals affirmed in unpublished opinion. Petition for review of the registration requirement granted.

ISSUE: Motion to Correct Illegal Sentence - Ex Post Facto Claim

HELD: District court's decision is affirmed for a different reason. Following State v. Wood, 306 Kan. 283 (2017), and State v. Reese, 306 Kan. 279 (2017), district court had jurisdiction to hear and consider Kilpatrick’s motion to correct an illegal sentence, but his ex post facto claim has no merit because definition of an illegal sentence does not include a claim the sentence violates a constitutional provision.   

STATUTES: K.S.A. 2013 Supp. 22-3716(c)(9); K.S.A. 22-4902; K.S.A. 22-4901 et seq., -4902(a)(11)(B)

 

constitutional lawcriminal law—criminal procedure—evidence—
instructions—juries—speedy trial—statutes
state v. robinson
wyandotte district court—affirmed; court of appeals—affirmed
no. 110,040—august 11, 2017

FACTS: A jury convicted Robinson of aggravated burglary, aggravated battery, and criminal damage to property. Robinson appealed, claiming in part: (1)  a violation of his statutory rights to a speedy trial because continuance granted to State for a material witness was not supported by a sufficient showing of unavailability; (2) insufficient evidence supported his aggravated burglary conviction because he was a cohabitant;  (3) the jury instruction on “bodily harm” was erroneous because it directed jury that certain circumstances are bodily harm as a matter of law, and thereby precluded jury from finding that element beyond a reasonable doubt; (4) district court erred in refusing to redact victim’s statement to a doctor; (5) district court erred in admitting K.S.A. 60-455 evidence without providing a limiting instruction; (6) the written format of district court’s answer to jury’s deliberation questions violated Robinson’s rights to be present, to have a public trial, and to  have an impartial judge; and  (7) cumulative error denied him a fair trial. Court of Appeals affirmed in unpublished opinion. Review granted.  

ISSUES: (1) Speedy Trial, (2) Sufficiency of the Evidence - Aggravated Battery, (3) “Bodily Harm” Instruction, (4) Motion to Redact, (5) Limiting Instruction, (6) Written Response to Jury’s Questions, (7) Cumulative Error

HELD: Robinson’s statutory speedy trial rights were not violated. While a slim record substantiates State’s claim that the witness was unavailable, and better practice would be to present evidence in support of a request for such a continuance, Robinson’s claim in this case is unpreserved. Sufficient evidence supported Robinson’s conviction of aggravated burglary. Under conflicting facts viewed in light most favorable to the State, a reasonable juror could conclude that Robinson lacked authority to enter the home. Robinson’s constitutional challenge to the aggravated battery statute, raised for first time on appeal, is not reviewed. 

District court’s instruction on “bodily harm” was legally and factually appropriate. Under facts in this case, Robison’s objection to the doctor’s testimony was not properly preserved for appellate review. District court failed to provide a limiting instruction regarding the admission of K.S.A. 60-455 evidence, but this was harmless error under facts in the case. Robinson abandoned his arguments regarding rights to a public trial and an impartial judge. Even assuming a violation of Robinson’s right to be present, the error was harmless in this case. Robinson’s cumulative error claim fails because evidence against him was strong, and the two assumed errors in this case were harmless.  

STATUTES: K.S.A. 2016 Supp 22-3402(a), -3414(3); K.S.A. 21-3414(a)(1)(A)-(B), 22-3402, -3402(3), -3402(5), -3402(5)(c), 60-402, -455

 

constitutional law—criminal procedure—
sentences—statutes
state v. wingo
crawford district court—affirmed; court of appeals—affirmed
no. 108,275—august 11, 2017

FACTS: Wingo convicted of second-degree intentional murder and was required under the Kansas Offender Registration Act (KORA) to register as a violent offender for 15 years instead of 10 years, pursuant to KORA as amended prior to her sentencing. On appeal Wingo claimed the retroactive application of the longer registration requirement violated the Ex Post Facto Clause. Court of Appeals affirmed in an unpublished opinion. Review granted.  

ISSUE: Kansas Offender Registration Act - Ex Post Facto Claim

HELD: As set forth in State v. Meredith,  306 Kan. __ (2017), non-sex offenders seeking to avoid retroactive application of KORA provisions must, in order to satisfy “effects” prong of test in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), produce a record that distinguishes - by the “clearest proof”- KORA’s effect on those classes of offenders from the Act’s effects on sex offenders as a class. Record in Wingo’s case is not sufficiently developed to satisfy the “clearest proof” standard.”

DISSENT (Beier, J., joined by Rosen and Johnson, JJ.): Consistent with votes in State v. Petersen-Beard, 304 Kan. 192 (2016), State v. Reed, 306 Kan. __ (2017), and Meredith, finds the current KORA registration requirement is punishment in effect if not intent, whether claim is raised under Ex Post Facto Clause or Eighth Amendment. And it is no less so for a drug offender than a sex offender.

STATUTES: K.S.A. 2011 Supp. 22-4906(a)(1)(G); K.S.A. 2009 Supp. 22-4902(d)(3); K.S.A. 22-4901 et seq., -4906(a)

 

 

Kansas Court of Appeals –

 

Civil

 

ADMINISTRATIVE LAW—JURISDICTION
WALL V. DEPARTMENT OF REVENUE
RUSSELL DISTRICT COURT—AFFIRMED
NO. 116,779—AUGUST 11, 2017

FACTS: Wall was arrested for driving under the influence of alcohol. The arresting officer completed a DC-27 form showing that Wall failed a breath test. But the actual test results show that no breath sample was given. The officer also failed to mark several boxes on the form that must be completed in the event that a test subject fails a breath test. Wall appealed, arguing lack of reasonable grounds to request the test and that his due process rights were violated. After the suspension of Wall's driver's license was upheld, he filed a petition for judicial review. At that proceeding Wall argued for the first time that the suspension should be dismissed because of the irregularities with the DC-27 form. The district court granted Wall's motion for summary judgment and the Department of Revenue appealed.

ISSUE: Jurisdiction to suspend Wall's driver's license

HELD: Because subject matter jurisdiction may be raised at any time there was no error in considering Wall's argument even though he failed to raise it at the administrative proceeding. And the Department of Revenue had an independent, statutory duty to verify the validity of the DC-27 form. Because the form was not properly completed the Department of Revenue lacked subject matter jurisdiction to suspend Wall's license and the district court correctly overturned the suspension.

STATUTE: K.S.A. 2016 Supp. 8-1002(a), -1002(a)(1), -1002

Tags:  Crawford  Reno  Riley  Russell  Sedgwick  Shawnee 

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July 28, 2017 Digests

Posted By Administration, Monday, July 31, 2017

Kansas Supreme Court

Criminal 

constitutional law—criminal law—search and seizure—statutes
state v. bannon
sedgwick district court
court of appeals reversed and remanded to court of appeals for reconsideration
no. 112,212—july 28, 2017

FACTS: Wichita State University officers were told that Bannon always carried a handgun and had other guns and ammunition in his university apartment. Officers entered the restricted access apartment building, approached Bannon in a common area, and found a concealed handgun in his waistband. Bannon was charged with criminal carry of a firearm, K.S.A. 2012 Supp. 21-6302(a)(4). He filed a motion to dismiss, arguing he could not be convicted for possessing a concealed gun in his abode or within its curtilage. District court denied the motion. Bannon then filed motion to suppress the gun, arguing the warrantless patdown search was presumptively unreasonable, the stop-and-frisk exception under Terry v. Ohio, 392 U.S. 1 (1968), did not apply, and no probable cause supported his arrest. District judge denied the motion, finding in part the patdown was within the scope of Terry because officers had reasonable suspicion that Bannon was carrying a gun, and they were entitled to search to ensure officer safety. Bannon appealed the denial of both motions. Court of Appeals reversed in unpublished opinion. Panel assumed the officers had a reasonable suspicion that

Bannon was violating the law, but Terry’s second prong was not met because there was no evidence the officers were actually subjectively concerned for their safety or the safety of others. Panel did not address Bannon’s second issue regarding the motion to dismiss. Petition for review granted.

ISSUE:  Terry Stop - subjective vs. objective belief of officer

HELD:  Terry stops were examined, identifying conflicting federal and state cases regarding whether Terry’s second prong is a subjective or an objective test. Court holds the test is objective: whether an officer would reasonably suspect that the person stopped is armed and presently dangerous. Any testimony on the officer’s actual subjective belief or suspicion on that point is just one factor to consider in the totality of the circumstances. Panel incorrectly treated the lack of officer testimony as a dispositive negative determinant on the constitutionality of the Terry frisk. Court of Appeals is reversed and case is remanded for consideration under the correct test. If it determines on remand that the gun did not require suppression, then it must consider and decide Bannon’s second appellate issue.  

STATUTES:  K.S.A. 2012 Supp. 21-6302(a)(4); K.S.A. 22-2402

 

constitutional law—criminal procedure—sentencing—statutes
state v. Donaldson
sedgwick district court—affirmed; court of appeals—affirmed
no. 108,801—july 28, 2017

FACTS: Donaldson filed motion to challenge the retroactive application of the Kansas Offender Registration Act as violating the Ex Post Facto Clause. District court dismissed the action for lack of jurisdiction. Court of Appeals agreed in unpublished opinion. Petition for review granted.

ISSUE: Jurisdiction - motion to correct illegal sentence

HELD: Following holdings in State v. Wood, 306 Kan. 283 (2017), and State v. Reese, 306 Kan. 279 (2017), the lower courts had jurisdiction to consider Donaldson’s motion as a motion to correct an illegal sentence. But no meritorious claim was presented because the definition of an illegal sentence does not include a sentence that allegedly violates a constitutional provision. Outcome of the lower courts is affirmed as right for the wrong reason.

STATUTE: K.S.A. 22-3504, -4901 et seq.

 

constitutional law—criminal procedure—sentencing—statutes
state v. kilpatrick
reno district court—affirmed; court of appeals—affirmed
no. 111,054—july 28, 2017

FACTS: Kilpatrick filed motion to challenge the retroactive application of the Kansas Offender Registration Act as violating the Ex Post Facto Clause. District court dismissed the action for lack of jurisdiction. Court of Appeals agreed in unpublished opinion. Petition for review granted.

ISSUE: Jurisdiction - motion to correct illegal sentence

HELD: Following holdings in State v. Wood, 306 Kan. 283 (2017), and State v. Reese,  306 Kan. 279 (2017), the lower courts had jurisdiction to consider Kilpatrick’s motion as a motion to correct an illegal sentence. But no meritorious claim was presented because the definition of an illegal sentence does not include a sentence that allegedly violates a constitutional provision. Outcome of the lower courts is affirmed as right for the wrong reason.

STATUTES: K.S.A. 22-3504, -4901 et seq.; K.S.A. 2005 Supp. 22-4902

 

Kansas Court of Appeals

Civil 

ATTORNEY FEES—CONTRACTS—DAMAGES
HARDER V. FOSTER
LEAVENWORTH DISTRICT COURT—AFFIRMED IN PART—REVERSED IN PART—REMANDED
NO. 116,117—JULY 28, 2017

FACTS: Harder purchased a house from Foster. The house sat on land and had a lake and a dam. After the purchase concluded, Harder learned that the dam was illegal because it was constructed without a permit, and that obtaining a permit would require extensive repairs. Harder filed suit against Foster in 2013 alleging negligent misrepresentation and other claims related to the house purchase. A jury eventually found in Harder's favor. Citing language in the real estate purchase contract, the district court granted Harder's motion for attorney fees. There was a protracted process after that decision while the district court decided Foster's motion to alter or amend. Because of the delay, Harder filed a second motion for attorney fees to recoup funds spent litigating the attorney fee issue. That motion was denied, as the court found that the second set of attorney fees were not related to the real estate purchase contract. Harder filed a second suit against Foster in 2015, claiming that he fraudulently conveyed the proceeds of the purchase to his children so that he was insolvent after the judgment was issued. Foster passed away, but his estate paid to the district court funds sufficient to satisfy the judgment and attorney fees awarded to Harder. The district court believed that Harder had been satisfied and dismissed the 2015 action as moot.

ISSUES: (1) Error in denying the second motion for attorney fees from the 2013 case; (2) error to dismiss the 2015 case

HELD: Harder's first motion for attorney fees compensated her for expenses incurred through December 16, 2014. But Harder incurred costs far beyond that as the parties worked through the post-trial motions filed by Foster. All of those fees were related to Foster's default under the contract; as such, Harder should have been compensated. The merger doctrine does not deny Harder's second request for attorney fees, and she did not waive any of those fees. The 2015 action was not moot because Harder potentially had a cause of action under the Uniform Fraudulent Transfer Act and, under that Act, potentially had a right to attorney fees to any act related to the third-party claim. Harder was not entitled to punitive damages because punitive damages can only be collected from a wrong-doer, and Foster is now deceased.

STATUTE: K.S.A. 33-102, -201(c), -201(d), -201(g), -204, -204(a), -204(b), -207, -210 

COMITY—DIVORCE—JURISDICTION
WARD V. HAHN
OSBORNE DISTRICT COURT—REVERSED
NO. 116,654—JULY 28, 2017

FACTS: During divorce proceedings, a Nebraska court awarded Ward Hahn one-half interest in land in Osborne County. Ward subsequently petitioned a Kansas court to enforce the Nebraska order and to partition the land between herself and Hahn's parents. The district court noted that the Nebraska court did not have subject matter jurisdiction to directly transfer legal title of the Kansas land to Ward, but it partitioned the land anyway under the principle of comity. The Hahns appealed.

ISSUE: Did the Nebraska court have jurisdiction to direct a land transfer in Kansas

HELD: Courts of one state generally cannot directly affect the legal title to land situated in another state. The Nebraska court could have ordered Hahn, over whom it did have personal jurisdiction, to transfer ownership of the land to Ward. But that did not happen here. The Kansas district court's application of the principle of comity was an abuse of discretion because the Nebraska decree was a violation of Kansas public policy.

STATUTE: No statutes

Criminal

attorney and client—criminal law—evidence—statutes
state v. boatwright
sedgwick district court—reversed and remanded
no. 115,075—july 28, 2017

FACTS: During meeting with attorney to discuss State’s plea offer in criminal cases charging Boatwright with violating a protective order and stalking, Boatwright threatened to kill his ex-fiancé. After checking with supervisor and obtaining clearance from the disciplinary administrator, attorney disclosed Boatwright’s communication to sheriff’s office. Boatwright was acquitted on the protective order and stalking charges, but then was charged with criminal threat. At trial, the attorney and the detective to whom she reported the communication testified about Boatwright’s threats. Based on the disciplinary rule relating to client-lawyer relationship and confidentiality of information, KRPC 1.6, the district court admitted the statements over Boatwright’s repeated objections. Jury convicted Boatwright. He appealed, arguing his statement to his attorney was protected by the attorney-client privilege.

ISSUE: Attorney-client privilege

HELD: In determining the admissibility of Boatwright’s statement to his attorney, parties and district court failed to argue or address the statutory rule of evidence prescribing the attorney-client privilege, K.S.A. 2016 Supp. 60-426, which is different from the concept of client confidentiality under KRPC 1.6. District court erred in admitting Boatwright’s threat under KRPC 1.6(b), as it is not a rule of evidence and does not govern the admissibility of evidence at trial. Here, K.S.A. 2016 Supp. 60-426 barred the admission of Boatwright’s statement to his attorney. State’s argument for the crime-fraud exception is rejected because Boatwright’s meeting with his attorney was for the specific purpose of discussing State’s plea offer and not for seeking legal advice in order to enable or aid the commission or planning of a crime.

District court’s error was not harmless under facts in this case. Boatwright’s conviction is reversed.

STATUTE: K.S.A. 2016 Supp. 60-426, -426(a), -426(b)(1)

Tags:  Reno  Sedgwick 

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