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July 12, 2019 Digests

Posted By Administrator, Tuesday, July 16, 2019
Updated: Monday, July 15, 2019

Kansas Supreme Court

CIVIL

CHILDREN—JURISDICTION
IN RE A.A.-F.
GEARY DISTRICT COURT—AFFIRMED
Court of Appeals—AFFIRMED
NO. 117,368—July 12, 2019

FACTS: These proceedings involve five of Mother's six children. Two of the children were born in Kansas. All of the children were subject to child in need of care proceedings while living in California. After a fight with her husband, Mother brought the children to Kansas without telling anyone. The California court revoked the children's physical placement with Mother and ordered them returned to California. The children returned, and the California court began to inquire about a possible placement with the children's grandmother, who resides in Kansas. In June 2015, the California court cited the UCCJEA and transferred the case to Kansas. After several years working on reintegration, the State sought termination of Mother's parental rights. At a hearing, Mother argued that Kansas lacked jurisdiction. The district court overruled Mother's concerns about jurisdiction and, after hearing evidence, terminated her parental rights. In a divided opinion, the Court of Appeals held that the record did not show that UCCJEA jurisdiction properly passed from California to Kansas and found it was error for the district court to so find. But, it ruled that any error was harmless because there was home state jurisdiction in Kansas by the time the termination hearing occurred. Mother's petition for review was granted.

ISSUES: (1) Subject matter jurisdiction; (2) procedural due process rights

HELD:When the CINC proceedings began, California was the children's home state. The California order transferring the case to Kansas did not specify what provision of the UCCJEA is relied on when ceding jurisdiction. Unfortunately, there is nothing in the record on appeal to show exactly what happened in California. Nevertheless, the transfer order from California gave the Kansas court jurisdiction, and Kansas knew that California would not still be trying to make decisions in the case. Principles of comity apply to the California transfer order, even though it was not a final decision in this case. There was no abuse of discretion when Kansas accepted jurisdiction in this case, in accordance with the purposes of the UCCJEA. The failure to hold a hearing within 30 days did not violate Mother's due process rights.

STATUTES: K.S.A. 2018 Supp. 23-37,102(b), -37,110(a), -37,110(b), -37,110(d), -37,110(e), -37,201, -37,202, -37,202(a)(1), -37,202(a)(2), -37,207, -37,313, 38-2202(d), -2203; K.S.A. 20-301

HABEAS CORPUS
BREEDLOVE V. STATE
Sedgwick District Court—Affirmed in Part, Reversed in Part, Case remanded
Court of Appeals—AFFIRMED IN PART AND REVERSED IN PART
NO. 115,401—July 12, 2019

FACTS: Breedlove was convicted of felony murder in 1995. His conviction and sentence were reversed and he was retried, where he was again convicted of first-degree murder. That conviction and sentence was affirmed on direct appeal. Breedlove timely filed a K.S.A. 60-1507 motion which sat in district court for two years. Breedlove sent letters inquiring about the status of his motion. When those letters did not get a response, Breedlove attempted to file a motion for summary disposition. The district court refused to file the motion for summary disposition unless Breedlove paid a $195 filing fee. Breedlove eventually paid the fee. The district court, on multiple occasions, emailed the prosecutor's office requesting a response. After another email, the State responded, and the district court adopted the State's findings of fact and conclusions of law when denying Breedlove's motion. The Court of Appeals affirmed on all issues, including Breedlove's challenge to the imposition of the filing fee for the motion for summary disposition. Breedlove's petition for review was granted.

ISSUES: (1) Adoption of findings; (2) appointment of counsel; (3) ineffective assistance; (4) imposition of filing fee

HELD: There is no bright-line rule which prevents a district court from adopting in total a party's proposed findings of fact and conclusions of law. The statutory right to counsel is triggered only when the district court finds that a 60-1507 motion presents substantial questions of law or triable issues of fact. The district court was not required to appoint counsel for Breedlove. There is no evidence that any of Breedlove's attorneys were ineffective. Any argument made to the contrary is conclusory and without support in the record. Demanding a docketing fee in a case that was opened with a poverty affidavit is plain error. Breedlove should never have been charged, and the case is remanded so that he may be refunded.

CONCURRENCE: (Stegall, J.) There was no separation of powers violation because Breedlove failed to prove that the district court failed to conduct an independent review of the record. But prosecutors should never have judicial or quasi-judicial function.

STATUTES: K.S.A. 2015 Supp. 60-2008, -2008(a), -2008(b); K.S.A. 60-1507, -1507(b)

HABEAS CORPUS
DAWSON V. STATE
Sedgwick District Court—Affirmed
Court of Appeals—AFFIRMED
NO. 115,129—July 12, 2019

FACTS: Dawson was convicted of a child sex crime. His conviction was affirmed on appeal and after that, Dawson filed multiple K.S.A. 60-1507 motions. All of those motions were decided adversely and affirmed on appeal. In 2015, Dawson filed his fourth 60-1507 motion in which he argued ineffective assistance of counsel and prejudice due to the State's destruction of evidence that was potentially exculpatory. After Dawson filed the motion, the district court emailed the State and asked the State to respond to Dawson's motion. The State's response asked that the motion be denied as time-barred and successive. The district court agreed and denied the motion. That decision was affirmed on appeal by the Court of Appeals, which found no error in the district court's solicitation of a response from the State. The Supreme Court granted Dawson's petition for review.

ISSUES: (1) Solicitation of written response; (2) right to counsel; (3) timeliness of State's response to motion; (4) adequacy of forms; (5) right to an evidentiary hearing

HELD: A district court's review of a State's filed response to a 60-1507 motion, standing alone, does not create an indigent movant's right to counsel. Because the district court did not hold a hearing, Dawson did not have the right to counsel even if the response was solicited by the district court. A 60-1507 movant has only a statutory right to counsel. The court is not required to appoint counsel for an indigent movant while the merits of the motion are still being weighed. The 7-day response timeline of Rule 133(b) is not jurisdictional. Dawson's challenge to the adequacy of Judicial Council forms was not raised in any prior proceeding. In addition, Dawson shows no prejudice resulting from any alleged deficiency in the form. It was not error to find that Dawson failed to establish exceptional circumstances that would warrant a hearing on his 60-1507 motion.

STATUTE: K.S.A. 60-1507, -1507(f)(2)

HABEAS CORPUS
REQUENA V. STATE
BUTLER DISTRICT COURT—Court of Appeals IS AFFIRMED
DISTRICT COURT IS AFFIRMED
NO. 116,251—July 12, 2019

FACTS: Requena was convicted of rape in 1999. His conviction was affirmed on appeal. A few years later, Requena filed a K.S.A. 60-1507 motion, arguing the ineffective assistance of trial counsel. The motion was summarily dismissed and that decision was also affirmed on appeal. In 2014, Requena filed a second 60-1507 motion. He repeated his claim of ineffective assistance plus added new issues. The State filed a response and the district court summarily denied the motion, although the district court did not address Requena's claim that he could not be convicted because he was a sovereign citizen. The Court of Appeals affirmed; the opinion included a finding that Requena's sovereign citizen claim was meritless. The Supreme Court accepted Requena's petition for review.

ISSUES: (1) Consideration of written response; (2) Murdock claim

HELD: Considering a written response is not the same as holding a hearing. The right to have counsel appointed only attaches if a hearing is held. In this case, the district court had no obligation to appoint counsel for Requena and his due process rights were not violated. Because this 60-1507 motion was untimely, Requena had the burden to show that not giving him relief would result in manifest injustice. Requena's issues raise no substantial issues of law, and Murdock cannot apply because all of Requena's prior convictions occurred in Kansas.

STATUTES: K.S.A. 60-1507

HABEAS CORPUS
SHERWOOD V. STATE
Sedgwick District Court
Court of Appeals IS AFFIRMED
DISTRICT COURT IS AFFIRMED
NO. 115,899—July 12, 2019

FACTS: Sherwood was convicted of rape in 1997. His conviction was affirmed on direct appeal. More than 15 years after the mandate was issued, Sherwood filed a pro se K.S.A. 60-1507 motion alleging ineffective assistance of counsel and sentencing errors. The State responded, asking that the motion be denied as untimely. The district court summarily denied the motion, finding that not only was it time barred but also meritless. The Court of Appeals affirmed, and Sherwood's petition for review was granted.

ISSUES: (1) Appointment of counsel; (2) adequacy of form; (3) adequacy of findings; (4) merits of the claim

HELD: Considering the State's written response is not the same as a hearing. Counsel must be appointed for an indigent 60-1507 movant if a hearing is held, but the appointment of counsel is discretionary in the absence of a hearing. Sherwood's use of the Judicial Council form did not result in a due process violation or any prejudice. Sherwood appeared to know that he was required to prove manifest injustice. The district court's order, while concise, adequately conveyed the reasons for the denial of Sherwood's motion. The lower courts correctly found that Sherwood failed to show manifest injustice that would excuse the untimeliness of his claim. There is little evidence to support Sherwood's theory that he had a right to have appointed counsel file a writ of certiorari for him.

STATUTES: K.S.A. 60-1507

HABEAS CORPUS
STEWART V. STATE
Sedgwick District Court
Court of Appeals IS AFFIRMED
DISTRICT COURT IS AFFIRMED
NO. 115,149—July 12, 2019

FACTS: Stewart was convicted of aggravated robbery and his conviction was affirmed on appeal. He filed a timely K.S.A. 60-1507 motion which is the subject of this appeal. In that motion, he claimed ineffective assistance of counsel among other errors. Almost a year later, the State filed a response to the motion. It is unknown whether the district court asked the State to respond or whether the State responded of its own volition. The district court denied Stewart's motion, adopting the State's arguments and authorities as persuasive. Stewart appealed the denial to the Court of Appeals, arguing that it was a due process violation for the district court to consider the State's written response without appointing counsel for him. The Court of Appeals agreed that it was error for the district court to consider the State's response without appointing counsel. But it found that the error was harmless because Stewart's 60-1507 motion contained no valid claims. The Supreme Court accepted Stewart's petition for review on the lack of error and the State's cross-petition on whether Stewart was due counsel before the State's written response could be considered.

ISSUES: (1) Appointment of counsel; (2) substantive claims

HELD: There is a statutory right to counsel in a 60-1507 proceeding. In the district court, that right exists only when a motion presents substantial questions of law or triable issues of fact. The right to counsel does not exist if there is merely a potential substantial issue that would trigger the statutory right to counsel. The district court may, but is not required, to appoint counsel for an indigent 60-1507 movant while the merits of the motion are still being decided. A movant is entitled to counsel if the district court holds a hearing at which the State will be represented. But that right does not extend to the district court's consideration of a written response to a motion. There is no evidence that counsel's performance was deficient. Nothing else in the motion warranted an evidentiary hearing, and the district court properly denied the motion without a hearing.

STATUTE: K.S.A. 22-4506, -4506(b), 60-1507, -1507(b)

HABEAS CORPUS
THUKO V. STATE
Sedgwick District Court—AFFIRMED
Court of Appeals—AFFIRMED

NO. 115,662 —July 12, 2019

FACTS: Thuko was convicted of sex charges in 2004. His convictions were affirmed on direct appeal. Thuko filed one K.S.A. 60-1507 motion in 2008, which was ultimately denied. Thuko filed a second 60-1507 motion in 2014. After some months passed, the district court solicited a response from the State. After the response was filed, the district court summarily denied Thuko's motion, finding that it was both untimely and successive and failing to find any manifest injustice that would allow for a successive motion. The Court of Appeals affirmed, and Thuko's petition for review was granted.

ISSUES: (1) Right to counsel; (2) right to a hearing

HELD:A 60-1507 movant has a statutory right to counsel that attaches only if the district court finds substantial questions of law or triable issues of fact. The district court is not required to appoint counsel while it is evaluating the merits of the motion, although it must appoint counsel if a hearing is held at which the State is represented. A written response to the motion is not a hearing, and no right to counsel attaches. Thuko did not prove the existence of either manifest injustice or exceptional circumstances to excuse his untimely and successive 60-1507 motion. For these reasons, his motion was properly summarily denied.

STATUTE: K.S.A. 60-1507, -1507(c), -1507(f)(1)

criminal

constitutional law—criminal procedure—motions—
postconviction remedies—sentences—statutes
state v. dawson
Sedgwick District Court—affirmed
Court of Appeals—affirmed
NO. 116,530—July 12, 2019

FACTS: Relying on State v. McAlister, 54 Kan.App.2d 65 (2017)(McAlister I), Dawson filed 2015 motion alleging his 1997 sentence was illegal because his pre-Kansas Sentencing Guidelines Act burglary conviction should have been classified as a nonperson crime District court summarily denied the motion as procedurally barred. Applying State v. Dickey, 305 Kan. 217 (2016)(Dickey II), Court of Appeals affirmed. 55 Kan.App.2d 109 (2017). Dawson’s petition for review granted.

ISSUE: (1) Motion to correct an illegal sentence—legality of the sentence

HELD: See State v. McAlister, __ Kan. __ (2019)(this day decided), reversing holding in McAlister I. Pursuant to State v. Murdock, 309 Kan. 585 (2019)(Murdock II), the point in time to assess a sentence’s legality for purposes of a K.S.A. 22-3504(1) motion to correct an illegal sentence is the moment the sentence was pronounced. If a sentence was legal when pronounced, subsequent changes in the law will not render it illegal and amenable to correction under K.S.A. 22-3504(1). The rule in Dickey I and Dickey II derived directly from Apprendi v. New Jersey, 530 U.S. 466 (2000), a change in the law after Dawson’s sentence became final. Pursuant to Murdock II, Dawson cannot avail himself of that subsequent change in the law. District court’s denial of the motion to correct an illegal sentence is affirmed.

STATUTES: K.S.A. 2017 Supp. 22-3504(3); K.S.A. 22-3504, -3504(1), 60-1507

constitutional law—criminal procedure—motions—
postconviction remedies—sentences—STATUTES
State v. Laughlin
Sedgwick District Court—Affirmed
NO. 117,156—July 12, 2019

FACTS: More than ten years after his felony-murder conviction, Laughlin filed pro se motions to correct an illegal sentence and to withdraw his plea. District court summarily denied the motions. On appeal Laughlin argued the district court erred by considering the State’s written responses to his motions without appointing counsel to represent him, and claimed his sentence is illegal because his convictions are multiplicitous.

ISSUES: (1) Due process right to appointment of counsel; (2) summary denial of motion to correct an illegal sentence

HELD: State v. Redding, __ Kan. __ (2019)(this day decided), affirmed treating K.S.A. 22-3504 motions like K.S.A. 60-1507 motions when determining whether appointment of counsel is required, held that due process of law requires appointment of counsel at a hearing on a K.S.A. 22-3504 motion where the State is represented by counsel unless the defendant waives that right, and determined that a district court’s consideration of State’s response to a K.S.A. 22-3504 motion is not the equivalent of a hearing. Taken together, State v. Jackson, 255 Kan. 455 (1994), and State v. Hemphill, 296 Kan. 583 (2008), confirm that post-sentence plea withdrawal motions are treated like K.S.A. 60-1507 motions for purposes of determining whether the right to counsel was triggered. Thus rules announced in State v. Stewart, __ Kan. __ (2019)(this day decided) apply. Laughlin’s statutory right to counsel was not triggered for either motion because district court did not find a substantial issue of law or triable issue of fact. Moreover, district did not conduct a hearing on either motion, and its consideration of State’s written response did not equate to one.

Summary denial of the motion was appropriate because mulitplicity challenges fall outside the scope of a motion to correct an illegal sentence.

STATUTES: K.S.A. 2018 Supp. 22-3210(d)(2), -3210(e)(2), -3504(1), -3601(b)(3); K.S.A. 22-3504, 60-1507

constitutional law—criminal procedure—motions—
postconviction remedies—sentences—statutes
state v. mcalister
finney district court—affirmed and case remanded
Court of Appeals—reversed
NO. 115,887—July 12, 2019

FACTS: McAlister filed 2015 motions alleging his 1996 sentences were illegal in light of State v. Dickey, 301 Kan. 1018 (2015)(Dickey I), because his pre-Kansas Sentencing Guidelines Act burglary convictions should have been classified as nonperson felonies. District court summarily denied the motions as procedurally barred. Applying State v. Dickey, 305 Kan. 217 (2016)(Dickey II), Court of Appeals reversed. 54 Kan. App. 2d 65 (2017). State’s petition for review granted.

ISSUE: (1) Motion to correct an illegal sentence - legality of the sentence

HELD: McAlister’s sentences were final for purposes of post-conviction relief in February 1999, prior to Apprendi v. New Jersey, 530 U.S. 466 (2000), which founded holdings in Dickey I and Dickey II. Pursuant to State v. Murdock, 309 Kan. 585 (2019)(Murdock II), this subsequent change in the law cannot transform a legally imposed sentence into an illegal sentence. McAlister’s sentences were legal when imposed and remained so at the time his direct appeal became final. Subsequent changes in the law did not render his sentences illegal for purposes of a K.S.A. 22-3504(1) motion to correct an illegal sentence. Court of Appeals reversal of the district court is reversed and case is remanded with directions to reinstate McAlister’s original lawful sentences.

STATUTES: K.S.A. 2018 Supp. 21-5807(a)(1), -5807(c)(1)(A), -6811; K.S.A. 1999 Supp. 21-3715; K.S.A. 21-4701 et seq., 22-3504, -3504(1)

constitutional law—criminal procedure—motions—
postconviction remedies—sentences—statutes
state v. redding
rice district court—affirmed
Court of Appeals—affirmed
NO. 115,037—July 12, 2019

FACTS: Redding entered no contest plea to rape and aggravated indecent liberties of underage girls. Jessica’s Law sentence imposed for each count, with departure to the jointly recommended total sentence of 210 months. More than two years later he filed pro se motion to correct an illegal sentence. District court denied the motion after reviewing State’s response. Redding appealed claiming: (1) his pro se motion should have been liberally construed as a K.S.A. 60-1507 motion; (2) his due process rights were violated when district court requested a response from the State before summarily denying the motion without appointment of counsel; and (3) his sentence was illegal because district court did not consider his written allocution as a second motion to further depart from the grid-box numbers. Court of Appeals affirmed in unpublished opinion. Redding’s petition for review granted.

ISSUES: (1) Liberally construing the motion; (2) due process right to appointed counsel; (3) summary denial of motion to correct an illegal sentence

HELD: Under facts in this case, including form and content of Redding’s motion, district court did not err in construing the motion as one filed under K.S.A. 22-3504 seeking to correct an illegal sentence.

Appellate courts treat motions under K.S.A. 22-3504 like motions under K.S.A. 60-1507 motions for purposes of determining whether a hearing and appointment of counsel are required. If district court conducts a hearing to determine whether a K.S.A. 22-3504 motion presents substantial questions of law or triable issues of fact, a movant’s due process right to appointed counsel is implicated. But a district court’s review of State’s response to the motion, standing alone, is not the equivalent of a hearing and does not trigger the movant’s due process right to counsel. See State v. Stewart, __ Kan. __ (2019)(this day decided).

When district court accepts the recommendation of a plea agreement to depart from an off-grid Jessica’s Law hard-25 life sentence to a specific on-grid sentence, the court’s failure to consider a second departure to an even shorter sentence does not render the agreed-upon sentence illegal. Here, district court properly considered Redding’s initial departure motion as a request to depart from hard 25 Jessica’s law sentence to an on-grid sentence, followed statutory procedures for doing so, and was under no obligation to consider any further departures that were obliquely referenced in allocution.

STATUTES: K.S.A. 2018 Supp. 22-3504(1); K.S.A. 21-3502(a)(2), -3504(a)(3)(A), 22-3504, -4506(b), 60-1507, -1507(b), -1507(f)

constitutional law—criminal procedure—
motions—postconviction remedies
state v. roberts
Sedgwick District Court—affirmed;
Court of Appeals—affirmed
NO. 114,726—July 12, 2019

FACTS: In consolidated appeal, Roberts contends: (1) district court’s summary denial of the K.S.A. 60-1507 motion without appointment of counsel after receiving State’s written response to the pro se motion failed to follow protocol established in Lujan v. State, 270 Kan. 163 (2000), and thereby violated his due process rights; and (2) district court erred by denying Roberts’ request for an evidentiary hearing on the 60-1507 motion, finding the motion was untimely and successive. Court of Appeals affirmed in unpublished opinion. Review granted.

ISSUES: (1) Due process right to appointed counsel; (2) summary denial of K.S.A. 60-1507 motion

HELD: Stewart v. State, __ Kan. __ (2019)(this day decided), clarified that the Lujan protocol does not require appointment of counsel when the district court discerns a potentially substantial issue, albeit the court has discretion to do so. District court may, but is not required to, appoint an indigent K.S.A. 60-1507 movant an attorney during the period the court is making its determination of whether the motion, files, and records present a substantial question of law or triable issue of fact. Here, district court was not statutorily required to appoint counsel, as it determined the motion, files, and records of the case presented no substantial question of law or triable issue of fact. And district court did not conduct a hearing at which the State was represented by counsel, so as to trigger Roberts’ due process right to appointed counsel.

Roberts’ request for remand to attempt to make case to district court for exceptions to the procedural bars to his untimely and successive K.S.A. 60-1507 motion, in leu of establishing the existence of the exceptions on appeal, is denied.

STATUTE: K.S.A. 22-3402, -4506(b), 60-1507, -1507(c), -1507(f), -1507(f)(2)

constitutional law—criminal procedure—motions—
postconviction remedies—sentencing—statute
state v. tauer
Sedgwick District Court—affirmed
Court of Appeals—affirmed
NO. 114,432—July 12, 2019

FACTS: Some 20 years after his conviction and sentence became final in 1996, Tauer filed motion citing State v. Dickey, 301 Kan. 1018 (2015 (Dickey I), and State v. Dickey, 305 Kan. 217 (2016)(Dickey II), and claiming his prior New Mexico juvenile conviction should have been classified as a nonperson felony in sentencing. Court of Appeals affirmed in unpublished opinion. Review granted due to conflicting panel opinions.

ISSUE: (1) Motion to correct illegal sentence

HELD: Issue in this case is whether Tauer’s sentence is illegal, not the date he filed his motion under K.S.A. 22-3504(1). Pursuant to State v. Murdock, 309 Kan. 585 (2019)(Murdock II), the point in time to assess a sentence’s legality for purposes of a K.S.A. 22-3504(1) motion to correct an illegal sentence is the moment the sentence was pronounced. If a sentence was legal when pronounced, subsequent changes in the law will not render it illegal and amenable to correction under K.S.A. 22-3504(1). The rule in Dickey I and Dickey II derived directly from Apprendi v. New Jersey, 530 U.S. 466 (2000), a change in the law after Tauer’s sentence became final. Pursuant to Murdock II, Tauer cannot avail himself of that subsequent change in the law. District court’s denial of the motion to correct an illegal sentence is affirmed.

STATUTE: K.S.A. 22-3504(1)

Kansas Court of Appeals

CIVIL

SERVICE OF PROCESS—STATUTORY CONSTRUCTION
COASTAL CREDIT, LLC V. MCNAIR
RILEY DISTRICT COURT—REVERSED AND REMANDED
NO. 119,798—July 12, 2019

FACTS: McNair borrowed money from Coastal Credit so that he could buy a car. After McNair defaulted, Coastal Credit repossessed the car and sold it. There was a deficiency, though, so Coastal Credit filed a limited action lawsuit against McNair seeking the remaining balance, plus interest. At the time the lawsuit was filed, McNair was deployed with the United States Army to an overseas location. His wife and children lived in off-base housing. A process server attempted to serve McNair by serving a copy at McNair's "usual place of abode" with his wife. McNair did not answer the suit or appear. Eventually, the district court granted default judgment to Coastal Credit. After noticing that his wages were being garnished, McNair moved to set aside the default judgment on grounds that service was improper. At a hearing, McNair's wife disputed that she ever received service at the apartment. The district court denied the motion to set aside and McNair appealed.

ISSUE: (1) Adequacy of service

HELD: McNair's only argument on appeal is that the judgment was void for lack of legal service of process. Although it is undisputed that McNair's family lived in Manhattan, the relevant question is the location of McNair's place of abode. The term "usual place of abode", as used in the statute, is not the same as a person's domicile. At the time process was served, McNair's usual place of abode was at his Army deployment in Africa. McNair was never properly served, and the default judgment must be set aside.

STATUTE: K.S.A. 2018 Supp. 60-260(b)(4), -260(c), 61-3301(c), -3301(d), -3003(d)(1), 77-201 Twenty-fourth

NEUTRAL RISK—WORKERS COMPENSATION
JOHNSON V. STORMONT VAIL HEALTHCARE
WORKERS COMPENSATION BOARD—AFFIRMED
NO. 120,056—July 12, 2019

FACTS: Johnson worked as a housekeeper at Stormont Vail Hospital. In 2015, while working, Johnson tripped and fell. The resulting injury to her knee required rehabilitation and physical therapy, and kept her off work for three months. Six months later Johnson fell again. As before, she did not know what caused the fall. She broke her wrist and was again off work for an extended period. Johnson sought workers compensation benefits and an administrative law judge awarded compensation for both falls. Stormont Vail sought review from the Workers Compensation Appeals Board, arguing that Johnson's falls stemmed from neutral risks and did not arise out of and in the course of her employment. The Board disagreed, and Stormont Vail appealed.

ISSUES: (1) Causation beyond neutral risk; (2) burden of proof

HELD: The Board correctly found that walking was part of Johnson's work duties. She was working, and walking, when she fell. Both falls involved neutral risk with a particular employment character, and as such, her injuries are compensable. Johnson was not required to prove that her injuries did not result from a neutral risk. Once the Board found that Johnson met her statutory burden, the burden shifted to Stormont Vail to support its claim that there was no particular employment character tied to Johnson's activity during the falls.

STATUTE: K.S.A. 2018 Supp. 44-501b(c), -508(f)(3)(A), -508(f)(3)(A)(ii), -508(h), 77-201

Tags:  8807  burden of proof  causation  Finney District  neutral risk  Rice District  Riley District  Sedgwick District  Workers Compensation  Workers Compensation Board 

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November 30, 2018 Digests

Posted By Administration, Monday, December 3, 2018

Kansas Supreme Court

Attorney Discipline

ORDER OF TEMPORARY SUSPENSION
IN RE DAVID P. CRANDALL
NO. 117,910—NOVEMBER 30, 2018

FACTS: A hearing panel of the Board of Discipline of Attorneys found that Crandall violated KRPC 1.1 (competence), 1.3 (diligence), 1.4(b) (communication), 1.5(a) (fees), 1.7(a) (concurrent conflict of interest), and 8.4(d) (conduct prejudicial to the administration of justice). An inquiry into Crandall's conduct began when a client wrote the Disciplinary Administrator questioning the reasonableness of Crandall's fees. Around the same time, a district court judge reported Crandall after most of the fees that he requested in a probate matter were rejected. An inquiry into Crandall's fees showed that he was either inexperienced or was doing work in an attempt to justify fees which were substantially higher than those charged by other attorneys in the area.

FACTUAL FINDINGS: Crandall challenged many of the findings made by the hearing panel. The Kansas rules of attorney discipline give the court disciplinary jurisdiction over Kansas-licensed attorneys even if the behavior occurs outside of Kansas. Crandall's failure to follow Supreme Court Rule 6.02 and the Rules of Evidence, which apply in attorney discipline proceedings, means his constitutional and evidentiary issues were not preserved for appeal. There was clear and convincing evidence that Crandall's fees were excessive given the amount of time and labor expended. In representing another client, Crandall's personal interest in having his fee paid conflicted with his duty to advise his client. And he charged an unreasonable fee when the value of the estate decreased significantly while the probate case was pending.

HEARING PANEL: The hearing panel noted Crandall's multiple rule violations, which it attributed to a selfish motive. The panel also noted Crandall's "angry and condescending" tone that was used through disciplinary proceedings. A majority of the hearing panel recommended a 6-month suspension. A minority would recommend a 1-year suspension.

HELD: A majority of the court agreed with the hearing panel and imposed discipline of a 6-month suspension. A minority of the court would have imposed a lesser sanction.

Attorney Discipline

ORDER OF INDEFINITE SUSPENSION
IN RE BRANDON W. DEINES
NO. 119,111—NOVEMBER 30, 2018

FACTS: The Disciplinary Administrator filed a formal complaint against Deines in 2017. He did not file an answer and was temporarily suspended in September 2017. A hearing panel determined that Denies violated KRPC 1.1 (competence), 1.3 (diligence), 1.4(a) (communication), 1.15(b) (safekeeping property), 1.16(d) (termination of representation), 3.2 (expediting litigation), 8.4(d) (engaging in conduct prejudicial to the administration of justice), 8.1 (b) (failure to respond to a disciplinary authority), and Rules 207(b) (failure to cooperate in a disciplinary investigation) and 211(b) (failure to file an answer in a disciplinary proceeding). A complaint was filed after multiple instances where Deines failed to act on behalf of his clients, resulting in dismissed cases and harm to his clients.

HEARING PANEL: The temporary suspension was sought because Denies' inaction caused significant harm to his clients. In addition, Deines' failure to participate in the disciplinary process made it difficult to investigate. The panel acknowledged that Deines' behavior was a result of his depression. The Disciplinary Administrator asked for an indefinite suspension. Because Deines' behavior was caused by his depression the hearing panel recommended a 2-year suspension.

HELD: Denies failed to respond to the hearing panel's report and failed to attend the formal hearing on the complaint. The court considered this absence an additional aggravating factor. For that reason, the court imposed an indefinite suspension rather than the 2-year suspension recommended by the hearing panel.

Criminal

constitutional law–criminal procedure–sentences–statutes
state v. Hayes
johnson district court—affirmed
No. 117,341—november 30, 2018

FACTS:  Kansas Supreme Court affirmed Hayes’ conviction of premeditated first-degree murder for a 2010 shooting death, but vacated the hard 50 sentence as unconstitutional and remanded for resentencing. State v. Hayes, 299 Kan. 861 (2014). On remand, district court applied 2013 amended legislation now codified at K.S.A. 2017 Supp. 21-6620, to again impose an enhanced hard 50 sentence. Hayes appealed, claiming retroactive application of K.S.A. 2017 Supp. 21-6620 violated the Ex Post Facto Clause. 

ISSUE: Retroactive Application of 2013 Amendments to K.S.A. 21-6620

HELD: Because the 2013 amendments to the sentencing provisions of K.S.A. 21-6620 are procedural in nature and do not change the legal consequences of acts completed before its effective date, the retroactive application of those sentencing procedures do not violate the Ex Post Fact Clause of the United States Constitution.  Hayes’ invitation to reverse rulings in State v. Bernhardt, 304 Kan. 460 (2016), State v. Robinson, 306 Kan. 431 (2017), and State v. Lloyd, 308 Kan. 735 (2018), is declined. 

STATUTES: K.S.A. 2017 Supp. 21-6620; K.S.A. 2015 Supp. 21-6620; K.S.A. 2013 Supp. 21-6620; K.S.A. 2010 Supp. 22-3717(b)(1); K.S.A. 21-4635, -4706(c)

criminal law- evidence - jury instructions - motions - statutes
State v. Ingham
reno district court—affirmed
court of appeals—affirmed
No. 111,444—november 30, 2018

FACTS: Ingham convicted of possession or use of a commercial explosive. On appeal he claimed: (1) district court erred by denying motion in limine to prevent State from using “pipe bomb” and “improvised explosive device” to describe the beer-can bomb; (2) a sheriff deputy improperly testified his opinion that Ingham combined lawfully obtained items to make an illegal improvised explosive device; (3) a jury instruction wrongfully reworded the statutory definition of “commercial explosive” by equating it to an “improvised explosive device;” (4) trial court should have sua sponte instructed jury on the definition of a consumer firework; and (5) cumulative error denied him a fair trial.

ISSUES: (1) Motion in Limine; (2) “Commercial Explosive” Testimony; (3) Instruction on Elements of Criminal Use of Explosives; (4) Consumer Firework Definition Instruction; (5) Cumulative Error

HELD:  Ingham failed to show that the use of words at issue was improper or that it unfairly prejudiced his defense. No abuse of district court’s discretion in allowing prosecution to use words and phrases that correctly and accurately described Ingham’s explosive device. 

Assuming without deciding that deputy’s statement was close enough to testimony that Ingham was guilty of the charged crimes, and assuming this error was of constitutional dimension, the error was harmless under facts in this case.

The challenged instruction moved beyond informing jury what the State was required to prove and informed jury that State had proved an improvised explosive device was a commercial explosive. This was error, but under facts in case, the error was harmless.

No error found in district court’s omission of an unrequested instruction that defined a consumer firework. Nothing in the record would have led jury to believe that Ingham’s beer-can explosive was a consumer firework, either in terms of construction or intended usage. 

The errors and assumed errors did not affect the two possible jury choices in this case, and even taken in their cumulative effect, did not prejudicially affect the jury’s verdict.

CONCURRENCE (Nuss, C.J.): Affirms Ingham’s conviction, but departs from majority’s rationale regarding the motion in limine. Would hold the district court abused its discretion by allowing repeated references to the “I.E.D.” that Ingham had constructed. Under facts in case, however, cumulative effect of errors is still harmless.

CONCURRENCE (Biles, J., joined by Stegall, J.): Agrees the conviction must be affirmed but would hold: district court did not abuse its discretion in denying the motion in limine; no error in the elements instruction on criminal use of explosives; and the one assumed error of opinion testimony regarding the beer can bomb provides no basis for cumulative error.

CONCURRENCE (Stegall, J.):  Agrees with court’s judgments, but registers doubts about statute under which Ingham was convicted. Would welcome briefing on whether K.S.A. 2017 Supp. 21-5814(a)(1) is too vague, indefinite, or overbroad to survive constitutional scrutiny. 

DISSENT (Johnson, J., joined by Luckert and Beier, JJ.): Would reverse and remand for a fair trial. Takes exception to majority’s cavalier disregard of the inflammatory connotation associated with the term I.E.D. Would find district court abused its discretion in denying motion in limine, and the error was compounded by deputy’s opinion testimony which improperly stated a legal conclusion on unlawfulness. Scales of justice were further tipped by instruction which erroneously equated “improvised explosive device” with “commercial explosive.” Criticizes majority for engaging in impermissible judicial fact-finding or mere supposition in determining a consumer firework definition instruction was not factually appropriate in this case. Agrees the omission of that instruction was not clearly erroneous, but submits the factual record did not preclude it.

STATUTES: K.S.A. 2017 Supp. 21-5814(a)(1), -5814(c)(2), 60-456; K.S.A. 2012 Supp. 21-5601(b)(1), -5814(a)(1), -5814(a)(2)

criminal procedure—sentences—statutes
state v. rice
wyandotte district court—reversed and remanded
No. 117,322—november 30, 2018

FACTS: Rice’s 1992 conviction for first-degree premeditated murder and hard 40 sentence were affirmed on appeals. Some twenty years later, Rice appealed from his unsuccessful attempt to seek collateral relief on a claim of ineffective assistance of counsel. Court of Appeals affirmed the conviction but found ineffective assistance during the penalty phase. Sentence vacated and remanded for a new penalty phase hearing and resentencing. At resentencing, district court ordered a life sentence with possibility of parole after 15 years. Two months later Rice filed pro se motion to modify or reduce his sentence, arguing he should have been given an updated PSI that accounted for his failing physical condition. He also argued the court could have ordered probation. District court denied modification, holding that Rice received the only sentence available under the law and that his motion for a new PSI was rendered moot. Rice appealed claiming: (1) district court had jurisdiction to modify or reduce his sentence and that reduction is mandatory with a recommendation from the Secretary of Corrections; and (2) district court erred in concluding that probation was not an available option.

ISSUES: (1) Jurisdiction to Modify or Reduce the Sentence on Remand; (2) Availability of Probation

HELD: Statutes applicable to Rice’s motion to modify his pre-KSGA sentence are reviewed. The re-sentencing court was correct in not modifying Rice’s sentence to a lesser term of years, but under State v. Sargent, 217 Kan. 634 (1975), if secretary of corrections unequivocally recommended reducing Rice’s life sentence to a term of years, the court would have to modify it unless best interest of the public would be jeopardized or Rice’s welfare would not be served by the reduction. As to whether the re-sentencing court was required to order an updated PSI that may have resulted in a facility recommendation that Rice should serve a lesser sentence, there is precedent for finding no error in district court’s refusal to do so.

Court of Appeals vacated Rice’s original sentence, so on remand the district court was imposing Rice’s sentence anew. Probation is a possibility for a person convicted of a Class A felony. The 2016 resentencing court abused its discretion by not understanding its own authority and being unable to consider exercising it. On remand for resentencing, district court should exercise its discretion to consider probation on the record.

STATUTES: K.S.A. 2017 Supp. 22-3601; K.S.A. 21-4701 et seq.; K.S.A. 1992 Supp. 21-3401, -3401(c), -4602(3), -4603 et seq., -4603(2), -4603(4), -4604(1), 22-3717(b); K.S.A. 21-4501(a) (Ensley 1988)

appeals—courts—criminal law—criminal procedure—evidence—jury instructions—motions
state v. sims
wyandotte district court—affirmed
No. 115,038—November 30, 2018

FACTS: Sims convicted of premeditated first-degree murder and criminal possession of a firearm. On appeal he challenged: (1) district court’s denial of motion for mistrial after State witnesses violated orders in limine prohibiting mention of Sims’ battery; (2) the sequential ordering of jury instructions for degrees of homicide; (3) district court’s failure to give a limiting instruction to accompany Sims’ stipulation to a prior felony conviction; and (4) cumulative error denied him a fair trial.

ISSUES: (1) Mistrial, (2) Ordering Language in Instructions, (3) Prior Felony Limiting Instruction, (4) Cumulative Error

HELD: On facts of case, district court did not abuse its discretion when it denied Sims’ motion for mistrial. State witnesses made three brief, cryptic references to material prohibited by orders in limine; and the judge recognized the errors and issued a curative admonition in one instance and moved the trial immediately to other topics in the second and third instances.

The simultaneous consideration rule in State v. Graham, 275 Kan. 831 (2003), and the exception to that rule as recognized in State v. Bell, 280 Kan. (2005), are reviewed. Bell’s mutual exclusivity test is problematic, and the simultaneous consideration rule in Graham is is overruled. In this case, the district court’s instructions were legally appropriate.

Even if evidence in a stipulation to a prior felony conviction is subject to K.S.A. 2017 Supp. 60-455 and its requirement that a district judge give a limiting instruction, the failure to give such an instruction in this case was not clear error.

Errors discerned or assumed in this case were discrete and did not compound one another. On the record presented, the totality of circumstances did not prejudice Sims or deprive him of a fair trial.

CONCURRENCE (Beier, J., joined by Lukert and Johnson, JJ.): Concurs with the result and all rationale but for majority’s reasoning regarding sequential and simultaneous jury consideration of degrees of homicide. Agrees that Bell and following cases are infected with a logical fallacy and would overrule them, but would not overrule Graham. Would hold the ordering language in the district court’s instructions was error, but not reversible error standing alone or under the cumulative error doctrine.

STATUTES: K.S.A. 2017 Supp. 22-3414(3), 60-455; K.S.A. 2012 Supp. 21-5109(b); and K.S.A. 22-3423, -3423(c)

constitutional law—criminal law—evidence—jury instructions—statutes
state v. williams
sedgwick district court—affirmed
court of appeals—affirmed
No. 108,394—november 30, 2018

FACTS: Williams forcibly entered residence of a woman he had been dating and where Williams had spent some nights the previous two weeks. Jury convicted him on charges of aggravated burglary, aggravated battery, aggravated assault, and domestic battery. Williams appealed. Court of Appeals affirmed in unpublished opinion. Review granted on six claims as reordered and combined by the court: (1) insufficient evidence supported his aggravated burglary conviction; (2) the aggravated burglary and domestic battery convictions were inconsistent and mutually exclusive; (3) district court erroneously instructed jury on aggravated assault when it told jury the State had to prove Willams used “a deadly weapon, a baseball bat;” (4) district court failed to instruct on lesser included offenses of assault and battery; (5) Kansas’ aggravated battery statute, K.S.A. 2011 Supp. 21-5413(b)(1)(B), is unconstitutionally vague; and (6) cumulative error denied him a fair trial.

ISSUES: (1) Sufficiency of the Evidence, (2) Mutually Exclusive Verdicts, (3) Jury Instruction - Aggravated Assault, (4) Jury Instruction - Lesser Included Offenses, (5) Constitutionality of Statute, (6) Cumulative Error

HELD: No authority supports argument that authority to enter is a property right tied to status of Williams’ residence. Aggravated burglary statute does not require State to prove (or disprove) a burglar’s residence. Whether Williams and the victim both had a property interest in the residence is a closer question because no direct evidence about property interests of the two parties, but there was circumstantial evidence the victim had to give permission for Williams to enter and that he recognized or acquiesced in victim’s right to exclude him. Sufficient evidence presented that Williams entered the house without authority.

Court of Appeals’ elements approach is a valid method for determining if verdicts are mutually exclusive. Under facts in case, Williams did not establish mutually exclusive verdicts.

District court did not err in setting out State’s claim that Williams used baseball bat as a deadly weapon. State v. Sutherland, 248 Kan. 96 (1991), and State v. Sisson, 302 Kan. 123 (2015), are reviewed. Here, district court did not explicitly state a baseball bat is a deadly weapon, but rather stated what the State had to prove. State v. Ingham (this day decided) is distinguished. District courts are cautioned in constructing this type of instruction.

District court erred in failing to instruct on assault and battery as lesser included offenses of aggravated assault and aggravated battery. Instructions on the lesser included offenses were legally appropriate, and under standard in State v. Haberlein, 296 Kan. 195 (2012), were factually appropriate. On facts in this case, however, no clear error.

K.S.A. 2011 Supp. 21-5413(b)(1)(B) is not unconstitutionally vague. Individuals of ordinary intelligence can understand what is meant by “can be inflicted” language. Court of Appeals’ reasoning in cases rejecting constitutional challenges to the statute is approved.

Cumulative effect of the two instructional errors did not deny Williams a fair trial.

CONCURRENCE (Rosen, J., joined by Nuss, C.J. and Stegall, J.): Agrees the convictions should be affirmed, but disagrees with majority’s opinion that district court was required to instruct jury on the lesser included offenses. Consistent with his concurring and dissenting opinions in cases relating to application of K.S.A. 22-3414(3), no error in not instructing jury on lesser included offenses of misdemeanor battery and misdemeanor assault.

CONCURRENCE (Johnson, J., joined by Beier, J.): Would hold the district court’s aggravated assault elements instruction was erroneous, but even if jury had been clearly told to find the baseball bat met the definition of a deadly weapon, the result would have been the same.

STATUTES: K.S.A. 2017 Supp. 20-3018(b), 22-3414(3), 60-261; K.S.A. 2011 Supp. 21-5109(b), -5412, -5413(b)(1)(B), -5414, -5414(c)(1), -5807(b); and K.S.A. 77-201, - 201, Twenty-third

Court of Appeals

Criminal

criminal procedure—probation—sentences—statutes
state v. jones
reno district court—vacated and remanded
No. 118,268—November 30, 3018

FACTS: Jones convicted of failing to register as a drug offender. Prison term imposed with a 24-month period of post-release supervision, and a dispositional departure for 36 months probation. Probation revoked in 2014. Revocation sentence pronounced from bench was 51-month prison term with no mention of post-release supervision, but journal entry of probation revocation ordered 85-month prison term with 24-months post-release supervision. Jones appealed. Court of Appeals ordered remand, finding the sentence effective when pronounced from the bench. On remand, district court filed journal entry nunc pro tunc ordering 51-month prison term with 24-month post-release supervision. Jones filed motion to correct an illegal sentence, arguing the post-release supervision term should be vacated. District court denied the motion. Jones appealed, arguing in part for first time that district court’s silence on the postrelease supervision term at the revocation hearing constituted a lawful modification of her sentence under K.S.A. 2017 Supp. 22-3716(b). Supplemental briefing ordered on what effect, if any, K.S.A. 2017 Sup. 21-6804(e)(2)(C) had on the appeal. 

ISSUE:  (1) Probation Revocation Sentence; (2) K.S.A. 2107 Supp. 21-6804(e)(2)(C)

HELD:  Based on State v. McKnight, 292 Kan. 776 (2011), State v. Sandoval, 308 Kan. 960 (2018), and State v. Roth, 308 Kan. 970 (2018), district court erred when it later included a 24-month post-release supervision term in the journal entry. Although the district court may not have intended to vacate the postrelease provision term upon revoking Jones’ probation, the court was authorized to do so and the new lawful sentence was effective when pronounced from the bench.

K.S.A. 2017 Supp. 21-6804(e)(2)(C) does not apply to a sentence that is lawfully modified at a probation revocation hearing under K.S.A. 2017 Supp. 22-3716(b) because a postrelease supervision term is not required by law as part of the sentence when the district court sentences a defendant anew after revoking probation. Here, the district court imposed a lawful lesser sentence of a 51-month prison term with no post-release supervision period. This sentence was effective when pronounced from the bench at the revocation hearing and cannot later be modified.

STATUTES:  K.S.A. 2017 Supp. 21-6804(e)(2)(C), -6805(e)(2)(C), 22-3504, -3716(b), -3716(d)(1)

Tags:  Attorney Discipline  Johnson District  Reno District  Rice District  Sedgwick District  Wyandotte District 

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