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January 12, 2018 Digests

Posted By Administration, Tuesday, January 16, 2018

Kansas Supreme Court

Attorney Discipline

ONE YEAR SUSPENSION
IN THE MATTER OF DANIEL HART PHILLIPS
NO. 118,210—JANUARY 12, 2018

FACTS: A hearing panel determined that Phillips violated KRPC 8.4(g) (engaging in conduct adversely reflecting on a lawyer's fitness to practice law). The issue arose after Phillips made inappropriate sexual remarks to a prospective client. During the investigation, Phillips admitted to making the comments, apologized, and blamed his prior history of substance abuse as a precipitating factor.

HEARING PANEL: At the hearing, the panel concluded that Phillips was not fully honest when answering questions from the disciplinary administrator's office. After considering the other aggravating and mitigating factors, and the Disciplinary Administrator's conditional recommendation of probation, the hearing panel recommended that Phillips be suspended for one year with a two-year term of probation starting after 30 days.

HELD: The hearing panel's findings were deemed admitted. At oral argument, the Deputy Disciplinary Administrator introduced evidence to show that Phillips was not in compliance with his proposed probation plan. Because of this evidence, the court ruled that probation was not an appropriate disposition. The court suspended Phillips for one year and refused probation.

criminal

criminal law—fraud and deceit—statutes
state v. ward
johnson district court—reversed; court of appeals—affirmed
No. 111,640—january 12, 2018

FACTS: As a loan to All Construction Guaranteed Roofing and Restoration (ACG), a company formed and operated by Ward and Rhodes, Sweeney wrote a Bank of America check to ACG. Ward added his name as a payee on the check, and deposited it in his personal account at First National Bank. State charged Ward with theft by deception from ACG or Bank of America, and with making false information. On appeal, Wade claimed insufficient evidence supported the theft by deception conviction, and the State proved the crime of forgery rather than making false information. Court of Appeals agreed and reversed both convictions. State v. Ward, 52 Kan.App.2d 663 (2016). State’s petition for review granted.

ISSUES:(1) Theft by deception; (2) making false information

HELD:On facts in this case, insufficient evidence supported Ward’s conviction of theft by deception. No proof that either of the two possible victims named in the charging document and jury instruction was deceived by Ward. Departing from panel’s analysis, Supreme Court finds the theft by deception from Bank of America fails because First National Bank, rather than Bank of America, was deceived by Ward’s actions.

Making false information and forgery statutes are interpreted, with extensive discussion of their statutory history. A defendant’s conviction for making false information can be affirmed regardless of whether the criminal conduct pertains to his or her own business or affairs. Any earlier statement in or impression from State v. Rios, 246 Kan. 517 (1990), and Sate v. Gotti, 273 Kan. 459 (2002), to the contrary is explicitly rejected. Under facts in this case, evidence that Ward altered the payee line of a check was insufficient to prove he made false information.

STATUTES: K.S.A. 2016 Supp. 21-5801(a)(1), -5801(a)(2), -5811, -5823, -5823(a), -5824, -5824(a), 84-3-103(5); K.S.A. 2012 Supp. 21-5111(e), -5111(s); K.S.A. 21-5801, -5801(a)(2), -5824, -6804, -6807; K.S.A. 1996 Supp. 21-3711; K.S.A. 21-3711 (Ensley 1988); and K.S.A. 1970 Supp. 21-3710, -3711; G.S. 1923, 21-601 through 637

Kansas Court of Appeals

Civil

ACQUIESCENCE—DEBTORS—JUDGMENTS—MOOTNESS
SECURITY BANK OF KANSAS CITY V. TRIPWIRE OPERATIONS GROUP, LLC
WYANDOTTE DISTRICT COURT—APPEAL DISMISSED
NO. 117,534—JANUARY 12, 2018

FACTS: Security Bank of Kansas City had a guaranty contract with Anthony Nichols to guarantee the debts of Tripwire Operations Group, LLC. When Tripwire defaulted on a credit card, the Bank sued Tripwire, Nichols, and Ryan Morris. After the district court granted summary judgment to the Bank, Nichols appealed. After the appeal was docketed but before it could be heard by the panel, the Bank moved to involuntarily dismiss this appeal on grounds of mootness. The Bank claimed that Nichols acquiesced in the judgment because the Bank exercised its right of setoff and took money out of Nichols' bank account to cover the judgment.

ISSUES: (1) Availability of setoff as remedy; (2) mootness; (3) acquiescence

HELD: Setoff is a statutory self-help remedy available to banks. There is no requirement that any judicial action occur before setoff is exercised. And the guaranty contract signed by Nichols included a setoff provision. In the absence of a stay of the judgment against Nichols, the Bank exercised its right of setoff and satisfied its claim against Nichols. Once the judgment was satisfied, the Bank filed a satisfaction of judgment. The satisfaction of judgment concluded this litigation, rendering this appeal moot. Because the setoff was not a voluntary relinquishment by Nichols, the doctrine of acquiescence did not apply.

STATUTES: K.S.A. 2016 Supp. 60-262(d), -2401; and K.S.A. 9-1206, 60-721

Criminal

constitutional law—criminal law—evidence—fourth amendment—search and seizure
state v. bannon
sedgwick district court—affirmed
No. 112,212—january 12, 2018

FACTS: Acting on verified information, officers located Bannon in student apartment lobby and found a concealed hand gun during a pat-down search. Bannon filed motion to suppress this evidence, arguing it was taken during a warrantless search of his person within the curtilage of his apartment, or alternatively, the officers lacked reasonable suspicion or probable cause to seize and search him. District court denied the motion, and jury convicted Bannon of criminal carrying of a weapon. On appeal Bannon claimed he was in lawful possession of the firearm because the front lobby to his apartment building qualified as part of his abode or curtilage. He also claimed the district court erred in not granting his motion to suppress, arguing the evidence was discovered as a result of an improper pat-down search. In unpublished opinion, Court of Appeals found the motion to suppress should have been granted because a warrantless pat-down search occurred without evidence a law enforcement officer had an actual, subjective belief Bannon was armed and presently dangerous, or that officers were reasonably concerned for their safety or safety of others. State’s petition for review granted. Supreme Court reversed and remanded, adopting and applying a hybrid approach to the second step of a Terry stop: testimony as to officer’s subjective belief or fear is a factor for consideration in the objective analysis of the totality of the circumstances, but absence of such testimony does not invalidate the reasonableness of a frisk. State v. Bannon, 306 Kan. 886 (2017).

ISSUES: (1) Curtilage or abode, (2) motion to suppress

HELD: Issue of first impression in Kansas as to whether the lobby of an apartment building is considered the tenant’s land or abode under K.S.A. 2012 Supp. 21-6302(a)(4). Under analysis in recent unpublished Kansas Court of Appeals case and cases in other jurisdictions, the student apartment lobby in this case was not an extension of Bannon’s apartment or abode. More than nonexclusive permissive use with others is needed. Also, at time of the stop and frisk, Bannon was sitting in a chair reading. He was not using the lobby as an extension of his land through an ingress-egress easement, and had no right under an easement to possess a firearm in the front lobby.

District court’s denial of Bannon’s motion to suppress did not violate the Fourth Amendment. The stop of Bannon in the lobby was sufficiently public for officers to initiate the stop. Considering the totality of the circumstances, and applying the hybrid test adopted by the Supreme Court, it was objectively reasonable for the officers to believe Bannon had a gun and to perform a pat-down search for their safety and the safety of others.

STATUTES: K.S.A. 2012 Supp. 21-6302, -6302(a)(4)

criminal

criminal law—evidence—statutes
state v. brazzle
riley district court—affirmed
No. 116,649—january 12, 2017

FACTS: Brazzle was convicted of drug charges involving methamphetamine and possession of oxycodone based on gray pills identified by an officer using www.drugs.com. District court allowed State to present evidence that Brazzle was involved in undercover methamphetamine transactions a week before his arrest in this case. On appeal, Brazzle claimed the admission of this K.S.A. 60-455 evidence was error because he never claimed his possession of methamphetamine was innocent, and the potential prejudice outweighed its probative value. He next challenged the jury instruction on the elements for possession of oxycodone. Third, he claimed insufficient evidence supported the oxycodone conviction because the State failed to present evidence the pill was tested, and failed to present any evidence that Brazzle did not have a prescription for that drug.

ISSUES: (1) Admission of evidence, (2) jury Instruction, (3) sufficiency of the evidence - possession of a controlled substance, (4) proof of prescription

HELD: District court did not abuse its discretion by admitting the evidence under K.S.A. 60-455. By claiming the State could not prove the items discovered in the stopped vehicle belonged to him, Brazzle essentially raised a defense of innocence, and the evidence was highly probative of his intent to distribute the methamphetamine he possessed rather than to possess it for personal use.

Brazzle invited error by advocating the version of the instruction given to the jury.

Issue of first impression in Kansas. When sufficiency of the evidence for possession of a controlled substance is challenged, uncontroverted testimony by a witness identifying the substance through consultation with www.drugs.com is sufficient to support jury’s conclusion beyond a reasonable doubt that the substance was that identified by the witness. Here, this evidence was admitted without objection and without any evidence to the contrary. The officer’s testimony was sufficient for jury to reasonably conclude the gray pills were oxycodone hydrochloride.

Relevant statutes are interpreted. Lawful possession of a controlled substance by prescription is an affirmative defense to the charge of possession of a controlled substance under K.S.A. 2016 Supp. 21-5706. A person charged with unlawful possession of a controlled substance must bring forward a claim of legal authorization to possess the controlled substance at issue.

CONCURRENCE and DISSENT (Atcheson, J.): Dissents from majority’s finding that sufficient evidence supported the possession of oxycodone conviction. Here the jurors had to speculate on the facts and basic details about the officer’s internet-based identification of the seized pills as oxycodone, and cases cited by the majority are inapposite to the majority’s conclusion.

STATUTES: K.S.A. 2016 Supp. 21-5706, 60-455, -455(b), 65-4107(b)(1)(N), -4107(b)(2), -4116(a), -4116(b), -4116(c), -4116(c)(3), -4123, -4123(a), -4123(b); K.S.A. 60-455, 65-4101 et seq.

criminal

constitutional law—due process—criminal law—criminal procedure—statutes
state v. owens
wyandotte district court—reversed and vacated
No. 116,979—january 12, 2018

FACTS: Owens was convicted in 2003 of aggravated indecent liberties with a child, and was required to register with sheriff four times a year. He did so in 2014, but was unable to pay the $20 fee for each registration. Each failure to pay was itself a crime absent compliance with K.S.A 2014 Supp. 22-4905(k)(3) which provides waiver of the fee payment only if the offender obtained a judicial finding of indigency prior to the required reporting. Owen challenged the constitutionality of that statute, as applied to him, as not providing procedural due process.

ISSUE: Due Process

HELD: Finding a defendant criminally liable for failure to pay the $20 registration fee under the Kansas Offender Registration Act violates the defendant’s procedural-due-process rights as applied in this case because Owens had no reasonably available path to get a court finding of indigency. Owens received no notice of a procedure he could use to get a court to determine he was unable to pay the fee before his registration dates, and Legislature provided no clear guidance about how one might do so.

STATUTE: K.S.A. 2014 Supp. 21-5203(f), 22-4903, -4903(c)(3), -4905, -4905(k)(3)

Tags:  Attorney Discipline  Johnson  Riley  Sedgwick  suspension  Wyandotte 

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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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August 4, 2017 Digests

Posted By Administration, Monday, August 7, 2017

Kansas Supreme Court

Civil

EVIDENCE—JURIES—TORTS
BULLOCK V. BNSF RAILWAY COMPANY
WYANDOTTE DISTRICT COURT— COURT IS APPEALS IS AFFIRMED—DISTRICT COURT IS REVERSED—CASE REMANDED
NO. 111,599—AUGUST 4, 2017

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

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

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

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

Criminal

CONFRONTATION CLAUSE—EVIDENCE—FINDINGS OF FACT
STATE V. JONES
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 113,409—AUGUST 4, 2017

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

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

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

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

 

CONSTITUTIONAL LAW—STATUTES
STATE V. MEREDITH
RILEY DISTRICT COURT—COURT OF APPEALS IS AFFIRMED—DISTRICT COURT IS AFFIRMED
NO. 110,520—AUGUST 4, 2017

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

ISSUE: Retroactive application of KORA

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

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

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

 

CONSTITUTIONAL LAW—STATUTES
STATE V. REED
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED
NO. 110,277—AUGUST 4, 2017

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

ISSUE: Retroactive application of KORA amendments

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

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

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

 

EVIDENCE—JURY INSTRUCTIONS—PROSECUTORIAL MISCONDUCT
STATE V. SEAN
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 114,417—AUGUST 4, 2017

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

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

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

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

Kansas Court of Appeals

Civil

 DEFAULT JUDGMENT—GARNISHMENT
MAINLAND INVESTMENT GROUP V. DIVERSICARE
LYON DISTRICT COURT—REVERSED AND VACATED
NO. 116,921—AUGUST 4, 2017

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

ISSUE: Ability to garnish

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

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

 

ICWA—PARENTAL RIGHTS
IN RE D.H., JR.
MEADE DISTRICT COURT—AFFIRMED IN PART, REMANDED WITH DIRECTIONS
NO. 116,422—AUGUST 4, 2017

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

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

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

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

Tags:  Lyon  Meade  Riley  Sedgwick  Wyandotte 

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June 16, 2017 Digests

Posted By Administration, Tuesday, June 20, 2017
Updated: Tuesday, June 20, 2017

Kansas Supreme Court

Criminal

constitutional law—criminal procedure
search and seizure—sentences
state v. hachmeister
shawnee district court—affirmed
court of appeals—affirmed
no. 112,260—june 17, 2017

FACTS: Police obtained search warrants during investigation of the murder of Hachmeister’s mother. Discovery of pornographic images of apparently prepubescent children during search of Hachmeister’s computer resulted in his conviction on 105 counts of sexual exploitation of a child. Sentence imposed included lifetime registration as a sex offender, based on district court finding the victims in the images were under 14 years old. Hachmeister appealed, claiming in part the district court erred in denying Hachmeister’s motions to suppress the recovered images, and claiming the sex offender registration requirement violated Apprendi. Court of Appeals affirmed in unpublished opinion. Hachmeister’s petition for review granted on two issues: (1) whether evidence from his computer should have been suppressed because it was not properly within the scope of search warrants issued during the homicide investigation; and (2) whether the district court violated Apprendi when it made the factual finding the victims were under 14 years old. 

ISSUES: (1) Search warrants; (2) lifetime registration as sex offender

HELD: All search warrants issued are reviewed. Hachmeister failed to preserve his challenge to three of them. The affidavit supporting a fourth warrant provided a sufficient basis for the district court to conclude there was a fair probability that evidence related to the murder might be found on Hachmeister’s computer.  Because probable cause supported that warrant, it did not taint the remaining warrant being challenged.

As decided in State v. Petersen-Beard, 304 Kan. 192 (2016), lifetime sex offender registration is not punishment for constitutional purposes, thus the finding that the victims were under 14 years old did not expose Hachmeister to an increased penalty within the meaning of Apprendi.

DISSENT (Beier, J., joined by Rosen and Johnson, JJ.): Dissents from majority’s holding that lifetime sex offender registration is not punishment. 

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

Kansas Court of Appeals

Civil

EVIDENCE—PARENTAL RIGHTS
IN RE L.M.B., A.B., AND L.B.
KIOWA DISTRICT COURT—AFFIRMED
NO. 116,155—JUNE 16, 2017

FACTS: The children in this case were removed after a relative alleged that the parents were using drugs in the home. All three children in this case are members of the Citizen Potawatomi Nation. The tribe was notified about the child in need of care (CINC) action almost as soon as it was initiated and a member of the Citizen Potawatomi Nation testified as an expert witness at the hearing on the motion to terminate parental rights. After their parental rights were terminated, both parents appealed.

ISSUES: (1) Sufficiency of the evidence; (2) qualification of the State's expert witness; (3) active efforts to prevent the breakup of the Indian family

HELD: There was sufficient evidence that the parents were unfit such that the termination of parental rights was warranted. The State's expert witness was a member of the children's tribe and—as a professor at an Indian Nations university—was recognized by the trial community as knowledgeable in tribal customs. It is undisputed that the State made every effort to involve the children's tribe and extended family members in order to protect the children's Indian culture. And any failure to complete reintegration tasks was caused by the parents' failures and not by a lack of support.

STATUTES: 25 U.S.C. § 1912(e), §1912(f), §1914; 25 U.S.C.A. § 1912(d), § 1912(f); K.S.A. 2016 Supp. 38-2269(a), 60-261

attorney and client—constitutional law
criminal law post-conviction relief
khalil-alsalaami v. state
riley district court—reversed and remanded
no. 115,184—june 17, 2017

FACTS: Jury’s conviction of Ziad Khalil-Alsalaami (Ziad) on two counts of aggravated criminal sodomy was affirmed on direct appeal. He then filed K.S.A. 60-1507 motion alleging ineffective assistance of counsel who represented him both at trial and on direct appeal. Allegations included counsel’s failure to request an interpreter at trial. District court conducted a full hearing and denied the motion. Ziad appealed. 

ISSUE: Ineffective assistance of counsel

HELD: Ziad’s allegations were reviewed in light of counsel’s overall trial strategy that DNA evidence was transferred to the victim, and that police tricked Ziad into a false confession. Under facts in this case, Ziad’s attorney was ineffective for not requesting an interpreter at trial.  Prejudice would be presumed because this implicated the basic consideration of fairness to Ziad. Other instances of ineffective assistance are further noted, including counsel’s failure to not raise the interpreter issue on direct appeal, failure to file a motion to suppress or to mount a defense at the Jackson v. Denno hearing, stipulating to the voluntariness of the confession, failing to object to prosecutor’s questions about Ziad’s conversation with his wife, failing to object to prosecutor’s misstatement of the evidence during closing argument, and failure to raise issue of prosecutorial misconduct during closing argument on direct appeal. These errors went to the heart of counsel’s defense strategy, and their cumulative effect impacted Ziad’s ability to receive a fair trial. Reversed and remanded for further proceedings. 

STATUTES: K.S.A. 2016 Supp. 21-6627(a)(1)(D), 75-452; K.S.A. 22-3215, 60-404, -1507, 75-4351, -4351(b), -4351(e)

Criminal

creditors and debtors—criminal procedure—jurisdiction—restitution sentences—statutes
state v. jamerson
shawnee district court—reversed
no. 116,413—june 17, 2017

FACTS: Jamerson was convicted and sentenced in 2001 to prison term and over $5,000 in restitution. Restitution again ordered in 2013 resentencing. Thereafter, the district court entertained a request for and entered an order of garnishment of Jamerson’s prisoner account. Jamerson appealed, claiming the district court lacked jurisdiction to enter garnishment order prior to the conclusion of Jamerson’s resentencing appeal.

ISSUES: (1) Jurisdiction, (2) restitution

HELD: Kansas criminal code does not contain statutes outlining a procedure by which a person owed restitution may seek recovery of the judgment. When restitution is ordered, it is a judgment against the defendant which can be collected by garnishment proceedings as in any civil case. Although the district court lost jurisdiction to alter or amend Jamerson’s sentence while the case was on appeal—including the amount of restitution—it had jurisdiction to enter an order of garnishment.

District court erred when it entered order allowing garnishment of Jamerson’s inmate account. A district court has discretion to order payment of restitution while a defendant is incarcerated, but it must declare that intention unambiguously. In this case, district court failed to make clear that restitution was payable immediately, thus restitution did not become due until Jamerson's release.   

STATUTES: K.S.A. 2016 Supp. 21-6604(b)(1), -6604(b)(2), 60-729(a), -731(a), -2103(d)(1); K.S.A. 2002 Supp. 21-4603d(a)(11), -4603d(b); K.S.A. 60-4301

criminal procedure—search and seizure
state v. lewis
sedgwick district court—reversed, sentence vacated and remanded
no. 115,285—june 17, 2017

FACTS: At the completion of a traffic stop, police had Lewis exit his car so dog sniff of car could be conducted. When the dog indicated drugs, the ensuing search resulted in the discovery of cocaine inside the center console. Lewis filed motion to suppress the evidence, contending in part the police unreasonably prolonged his traffic stop to obtain a dog sniff. District court denied the motion, finding the 21-minute stop was not excessive, and the dog’s aggressive indicator was sufficient probable cause for the search. District court also found the officer’s information from a confidential informant was sufficient to establish a reasonable suspicion that Lewis might be involved in criminal activity. Lewis was convicted on stipulated facts. On appeal, he claimed the district court erred in denying the motion to suppress, arguing in part the police unreasonably prolonged the traffic top to obtain a dog sniff.

ISSUES: (1) Reasonable suspicion, (2) traffic stop

HELD: No support in the record for State’s argument that reasonable suspicion to extend the traffic stop was based on Lewis’ jumpiness. And under facts in this case, the confidential informant’s anonymous tip would not have allowed officers to infer a reasonable suspicion of illegal conduct.

Under the circumstances, where the traffic investigation had just been completed as the drug sniffing dog arrived, the officers unreasonably prolonged the traffic stop to conduct the dog sniff. Lewis’ conviction is reversed, his sentence is vacated, and case is remanded with directions to grant his motion to suppress.

STATUTES: K.S.A. 21-36a06(a), -36a06(c)(1)

Tags:  Kiowa  Riley  Sedgwick  Shawnee 

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