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January 8, 9 and 11, 2019 Digests

Posted By Administration, Tuesday, January 15, 2019

Kansas Supreme Court

Attorney Discipline

ORDER OF DISBARMENT
IN THE MATTER OF LAURENCE M. JARVIS
NO. 07012 – JANUARY 8, 2019

FACTS: In a letter addressed to the Clerk of the Appellate Courts, Laurence M. Jarvis voluntarily surrendered his license to practice law in Kansas. At the time of surrender, Jarvis' license was indefinitely suspended and he faced an additional formal hearing on allegations of misconduct.

HELD: The Court accepted the surrender of Jarvis' license and ordered that he be disbarred.

ORDER OF DISBARMENT
IN THE MATTER OF JOHN M. KNOX
NO. 119,254 – JANUARY 11, 2019 

FACTS: The Disciplinary Administrator filed a formal complaint against Knox which alleged violations of KRPC 1.1 (competence); 1.3 (diligence); 1.4(a) (communication); 1.5(d) (fees); 3.2 (expediting litigation); 4.1(a) (truthfulness in statements to others); 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); 8.4(d) (engaging in conduct prejudicial to the administration of justice); (8.4)(g) (engaging in conduct adversely reflecting on a lawyer's fitness to practice law); and Rule 207(b) (failure to cooperate in a disciplinary action). The matter arose after Knox was retained to represent clients in a personal injury matter. He failed to perform any of the duties for which he was hired and failed to communicate with his clients. Knox failed to respond once the formal complaint was filed.

HEARING PANEL: The panel determined that although Knox failed to appear he was given appropriate service and notice of the formal hearing. There was adequate evidence to show that Knox committed the violations as alleged in the complaint. The hearing panel found a number of aggravating circumstances, including the vulnerability of the client and Knox's patterns of misconduct. Knox's failure to participate in the disciplinary proceeding meant there were no mitigating circumstances to consider. The Disciplinary Administrator recommended that Knox be disbarred and the hearing panel agreed.

HELD: Knox did not appear at the hearing before the Kansas Supreme Court. The court determined that there was clear and convincing evidence that Knox violated multiple rules of professional conduct. The Disciplinary Administrator continued to recommend disbarment and the court agreed. Knox is disbarred.

ORDER OF DISCHARGE FROM PROBATION
IN THE MATTER OF SUSAN L. BOWMAN
NO. 109,512 – JANUARY 9, 2019

FACTS: The court suspended Bowman's license to practice law in Kansas on October 18, 2013, for a period of 12 months. Bowman was required to undergo a reinstatement hearing prior to reconsideration being considered. After the hearing, Bowman was reinstated and placed on probation.  Bowman filed a motion for discharge from probation in November 2018, along with affidavits demonstrating compliance with the terms of probation. The Disciplinary Administrator did not object.

HELD: After reviewing the motions and affidavits, and the response of the Disciplinary Administrator, the court grants Bowman's motion for discharge from probation.

Civil

CONDEMNATION—STATUTORY INTERPRETATION
NAUHEIM V. CITY OF TOPEKA
SHAWNEE DISTRICT COURT – REVERSED and REMANDED
COURT OF APPEALS – AFFIRMED
NO. 114,271 – JANUARY 11, 2019

FACTS: The City of Topeka negotiated with business owners to purchase land in order to build a drainage system for city property. The negotiations resulted in the City's purchase of the property and the businesses' relocation without the use of eminent domain power. After the move, the business owners sued the City for relocation costs under K.S.A. 26-518, which allows for costs when real property is acquired by a condemning authority through negotiation in advance of a condemnation action. The City countered that it never intended to condemn the property and also noted that the business owners were not "displaced persons" under the statute because the property was actually owned by a landlord. The district court granted the City's motion for summary judgment, holding that the business owners were not displaced persons and that the property acquisition was not made in advance of a condemnation. On appeal, the Court of Appeals reversed, finding that the business owners were displaced persons. The panel remanded for further factual findings on the question of whether the purchase negotiations were conducted in advance of a condemnation. The business owners appealed the question of whether a displaced person must prove that a condemning authority threatened condemnation or took affirmative action towards condemnation prior to acquisition. That petition for review was granted. The City did not cross-petition on the Court of Appeals' other findings.

ISSUES: (1) Must a displaced person prove that a condemning authority had an intent to condemn in order to receive statutory relocation assistance

HELD: K.S.A. 26-518 requires a condemning authority to pay relocation costs when an acquisition occurs through negotiation before a condemnation action or when an acquisition actually occurs through condemnation. Nothing in the statute requires the City to pay relocation benefits as part of any public project. Whether a negotiation occurs "in advance of" a condemnation action is a question of fact that must be proven by a preponderance of the evidence.

STATUTES: K.S.A. 2017 Supp. 26-201, -501(a), -518, -518(a); K.S.A. 12-101, Second, -101, Fourth

CRIMINAL  

CRIMINAL PROCEDURE – DISCOVERY – MOTIONS – STATUTES
STATE V. ROBINSON
SEDGWICK DISTRICT COURT – AFFIRMED
No. 116,650 – JANUARY 11, 2019

FACTS: Robinson convicted of capital murder and other crimes.  Life prison term without parole imposed with a 247 additional months.  Convictions and sentence affirmed in direct appeal.  293 Kan. 1002 (2012).  He filed 2015 motion under K.S.A. 60-237 citing Brady v Maryland,373 U.S. 83 (11963) and Giglio v. United States, 405 U.S. 150 (1972), to compel exculpatory discovery of detective who had testified at his trial.  District court denied the motion finding no rule of criminal procedure allowing for such a motion, and the State had asserted there was no such information to produce.  Robinson appealed.

ISSUE: Postconviction Motion

HELD: District court’s decision is affirmed.  Nothing in K.S.A. 2015 Supp. 60-237 permits a postconviction motion to compel discovery in a criminal case.

STATUTES: K.S.A. 2015 Supp. 60-234, -237, -237(a)(1)-(3), -237(a)(3)(B)(iv)

CRIMINAL PROCEDURE – SENTENCES- STATUTES
STATE V. AYERS
WYANDOTTE DISTRICT COURT – AFFIRMED IN PART, VACATED IN PART, REMANDED
No. 117,654 – JANUARY 11, 2019

FACTS: Ayers convicted on guilty pleas to multiple felonies related to a murder.  Sentencing court imposed consecutive sentences consecutive to a life sentence without possibility of parole, and assessed BIDS fees.  Ayers appealed claiming the district judge failed to consider on the record Ayers’ ability to pay the assessed BIDS fees.  He also claimed the district judge abused its discretion by ordering most of the on-grid sentences to run consecutively to a life sentence with no possibility of parole.

ISSUES: (1) BIDS. Fees, (2) Sentences

HELD: Pursuant to State v. Robinson, 281 Kan. 538 (2006), the BIDS fee assessment must be vacated and case remanded for reconsideration of that fee.  Court rejects State’s argument that there is no additional fact-finding any court must do to resolve the issue of BIDS fess, and that the BIDS fee assessed was “unworkable” as found in restitution statute. 

No abuse of discretion in district court’s sentencing in this case.  Recognized purposes of sentencing go beyond pure incapacitation, and include retribution for Ayers’ other crimes.  Also, sentencing defendants to terms of imprisonment they are unlikely to serve is common. 

STATUTES: K.S.A. 2017 Supp. 21-6604(b)(1); K.S.A. 2005 Supp. 22-4513, -4513(b)

CONSTITUTIONAL LAW – CRIMINAL PROCEDURE – MOTIONS – STATUTES
STATE V. SAMUEL
WYANDOTTE DISTRICT COURT – AFFIRMED
No. 116,423 – JANUARY 11, 2019

FACTS: Samuel convicted of second-degree murder.  Nineteen years later, citing Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016), he filed motion to correct an illegal sentence and claiming his life sentence with mandatory 10-year terms violates the Eighth Amendment because he was 16 years old when he committed the crime.  District court summarily dismissed the motion, holding a motion to correct an illegal sentence was not a proper vehicle to challenge a sentence as unconstitutional.  Samuel appealed. 

ISSUE: Motion to Correct an Illegal Sentence

HELD: District court’s judgment is affirmed.  Samuel’s Eighth Amendment claims do not fit within the definition of an “illegal sentence.”  They do not implicate the sentencing court’s jurisdiction, and a motion to correct an illegal sentence under the statute cannot raise claims that the sentence violates a constitutional provision.

STATUTES: K.S.A. 2017 Supp. 22-3504(3), -3601(b)(3)-(4); K.S.A> 22-3504, -3504(1); K.S.A. 1996 Supp. 21-3402(a)

CONSTITUTIONAL LAW – EVIDENCE – FOURTH AMENDMENT – SEARCH AND SEIZURE
STATE V. DOELZ
LEAVENWORTH DISTRICT COURT – REVERSED AND REMANDED; COURT OF APPEALS – REVERSED
No. 113,165 – JANUARY 11, 2019

FACTS: Investigating a recent bank robbery by two black males, officer stopped vehicle in which Doelz was a passenger.  Officer seized a box he observed on the back seat.  When opened, the box contained a digital scale.  Methamphetamine then found in search of the vehicle.  Doelz arrested and convicted on drug charge.  He appealed, claiming district court erred in denying motion to suppress evidence obtained in an unlawful search.  Doelz argued in part:   (1) the investigatory detention was unlawfully extended once officer discovered all in the car were white males; (B) officer unlawfully seized the digital scale without a warrant or a valid exception to the warrant requirement; and (c) officer lacked probable cause to search the whole vehicle.  Court of Appeals affirmed in unpublished opinion. Doelz’s petition for review granted. 

ISSUE: Lawfulness of Vehicle Search

HELD: Under totality of the circumstances which included a report the bank robbery car was driven by a white male, reasonable suspicion for the investigatory detention was not unlawfully extended.  However, the search of the box retrieved from the backseat was unlawful.  Plain-view exception did not permit further search of the box without a warrant or another established exception.  Absent consideration of this alleged drug paraphernalia seized from the vehicle at the time of the stop, the remaining circumstances were insufficient to establish a fair probability the vehicle contained contraband.  District court thus erred in finding the automobile exception to the warrant requirement applied.  Panel’s decision to affirm the district court’s denial of the motion to suppress is reversed.  Matter is reversed and remanded for a new trial. 

STATUTES: K.S.A. 22-2402

Kansas Court of Appeals

Civil

DIVORCE – JUDGMENTS
IN RE MARRIAGE OF STROM
RILEY DISTRICT COURT—AFFIRMED
NO. 118,676—JANUARY 11, 2019 

FACTS: The Stroms married in 1986 and divorced in 1995. At the time of the divorce, Eric was retired from the military and was receiving military retirement benefits. In the property settlement agreement, Eric agreed to give Christina a portion of these retirement benefits. Although the agreement was incorporated into the divorce decree, Eric never made any of the required payments. Almost 22 years later, Eric moved to have the district court declare this division of his military retirement pay a void and unenforceable judgment. He claimed the judgment was dormant because Christina failed to file a renewal affidavit within five years of the divorce and did not revive the judgment within seven years of the divorce. Christina countered by moving to enforce and revive the judgment. The district court agreed with Christina and held that any payment due after September 1, 2010, was revived and enforceable. Eric appealed.

ISSUES: (1) Ability to revive the judgment

HELD: Because Eric and Christina were not married for 10 years, she was unable to file a QDRO and obtain direct payment from the military finance center. The only way the judgment could have been fulfilled was by direct payment from Eric. These payments had to be treated like monthly installment payments. As such, the dormancy period for each individual payment started when it became due and collectable. Christina can now execute on the last five years of judgments and can revive the judgments for the two years preceding that.

DISSENT: (Buser, J.) Christina had an obligation to attempt to enforce her judgment. Because she didn't, the judgment is unenforceable and should be extinguished.

STATUTES: K.S.A. 2017 Supp. 60-2403, -2403(a)(1), -2403(c)

EQUITY – JURISDICTION – WATER RIGHTS
GARETSON BROTHERS V. AMERICAN WARRIOR, INC.
HASKELL DISTRICT COURT – AFFIRMED IN PART, DISMISSED IN PART
NO. 117,404 – JANUARY 11, 2019

FACTS: Garetson Brothers owns water rights in Haskell County. It sought injunctive relief to prevent American Warrior, Inc. – the nearest junior rights holder – from impairing its water right. A referee found that American Warrior was substantially impairing Garetson's senior right and entered a temporary and then a permanent injunction prohibiting American Warrior from exercising its junior water rights. American Warrior appealed.

ISSUES: (1) Subject matter jurisdiction; (2) scope of the notice of appeal; (3) grant of permanent injunction

HELD: The amendments to K.S.A. 82a-716 and -717, which require a party to exhaust administrative remedies before seeking an injunction, did not apply retroactively in this matter. The court has subject matter jurisdiction to hear the merits of this appeal because American Warrior was not required to exhaust administrative remedies. In this civil case, the court only has jurisdiction to consider rulings which were specifically listed in the notice of appeal. The notice of appeal did not contain any "catch-all" language that would permit the court to consider additional rulings. A senior water right is still impaired even if the right holder has permission to pull water from a third party. There is no requirement that economic conditions be considered when determining whether a senior rights holder's usage is impaired. There is no evidence that Garetson had unclean hands in its prior water usage.

STATUTES: K.S.A. 2017 Supp. 60-102, -2103(b), 82a-701(d), -716, -717a; K.S.A. 82a-711(c), -716, -717a, -725

Tags:  8802  Attorney Discipline  Haskell District  Leavenworth District  Riley District  Sedgwick District  Shawnee District  Weekly20190115  Wyandotte District 

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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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October 26, 2018 Digests

Posted By Administration, Monday, October 29, 2018

Kansas Supreme Court

CIVIL

ESTOPPEL—INSURANCE
BECKER V. THE BAR PLAN MUTUAL INSURANCE COMPANY
JOHNSON DISTRICT COURT–Remanded
COURT OF APPEALS—REVERSED
NO. 113,291— OCTOBER 26, 2018

FACTS: Becker made a series of loans to a business and hired Seck and Associates, a law firm, to help him with that process. The business faced financial difficulties and Becker claimed that Seck failed to find that the business' collateral was already subject to a properly filed security interest. After the business failed and the owner sought bankruptcy protection, Becker initiated proceedings against Seck's malpractice insurance carrier. Becker asked the Bar Plan, Sack's insurer, for a policy limits settlement offer of $300,000. The Bar Plan denied Seck's claim for coverage, pointing to her failure to timely notify the insurance company about a pending claim. Seck confessed judgment in excess of $3 million and assigned to Becker any right to sue the Bar Plan. Becker did sue, claiming bad faith. But the district court granted summary judgment to the Bar Plan and the court of appeals affirmed. Becker's petition for review was granted.

ISSUE: (1) Reservation of rights and estoppel;

HELD: Both the district court and court of appeals erred by focusing on the "expansion of coverage" rule. The courts should have instead determined whether estoppel was appropriate under the reservation of rights rule. The Bar Plan could have satisfied its duty to defend while also preserving any defenses of noncoverage through a timely reservation of rights. In this case, there are genuine issues of material fact regarding whether Bar Plan timely reserved its rights. Accordingly, summary judgment was inappropriate and the case must be remanded for further findings of fact.

STATUTE: K.S.A. 60-256

criminal 

criminal procedure—motions—sentencing—statutes
state v. alford
sedgwick district court—affirmed
No. 117,270—october 26, 2018

FACTS: Alford was convicted in 1993 of first-degree murder, aggravated kidnapping, and unlawful possession of a firearm. State v. Alford, 257 Kan. 830 (1995). In 2016 he filed pro se motions to correct an illegal sentence. He claimed trial court violated K.S.A. 1993 Supp. 21-4624(3) by permitting sentencing jury to consider murder victim’s written statement regarding an earlier aggravated battery, which was improper hearsay testimony in violation of due process and right of confrontation. He also claimed jury was wrongly instructed it needed to reach a unanimous verdict on the hard 15 sentence in violation of K.S.A. 1993 Supp. 21-4524(5). District court summarily denied the motions. Alford appealed on both claims. 

ISSUE: Motion to correct an illegal sentence

HELD: Neither of Alford’s claims fits within the narrow definition of an illegal sentence, thus cannot be raised in a motion to correct an illegal sentence. Alford’s hearsay argument relies on K.S.A. 1993 Supp. 21-4624(3)—a subsection devoted to establishing evidentiary rules—which does not qualify as the relevant statutory provision implicating an illegal sentence. And Alford’s unanimity claim is defeated by State v. Allison, 306 Kan. 80 (2017).

STATUTES: K.S.A.  2017 Supp. 22-3631; K.S.A. 1993 Supp. 21-4624(3), -4624(5); K.S.A. 22-3414(3), -3504, -3504(1)

constitutional law—criminal procedure—evidence—juries—prosecutors
state v. williams
wyandotte district court—affirmed
No. 116,690—october 26, 2018

FACTS: William was convicted of first-degree premeditated murder and criminal possession of a firearm. On appeal he claimed: (1) prosecutor’s closing remarks improperly called William’s testimony a fabrication; (2) State’s peremptory strikes of two jurors, and trial court’s overruling William’s claim of racial discrimination, violated Williams’ rights under Batson v. Kentucky, 476 U.S. 79 (1986); (3) trial court erred in allowing overly gruesome autopsy photographs during testimony of State forensic pathologist; and (4) cumulative error denied him a fair trial.

ISSUES: (1) Prosecutorial misconduct, (2) Batson challenge, (3) gruesome photographs, (4) cumulative error

HELD: Under facts in this case, prosecutor’s comments about Williams’ trustworthiness were within proper bounds. In context, prosecutor was advancing reasonable inferences based on physical evidence which supported the suggestion that Williams’ testimony was unbelievable. 

Second and third steps in Batson challenge are discussed. Under circumstances in this case, trial court did not abuse its discretion by concluding the prosecutor had a valid, race-neutral reason to strike each juror.  

Autopsy photos in this case were graphically illustrative and unpleasant to view, but were not offered solely to inflame the jurors’ passions or prejudice.

Cumulative error claim is defeated by absence of any error. 

STATUTES: K.S.A. 2017 Supp. 21-5402, -6304, 22-3601(b)(4); K.S.A. 60-2101(b)

 

Tags:  113291  116690  117270  estoppel  insurance  Johnson District  Sedgwick District  Weekly10302018 

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October 19, 2018 Digests

Posted By Administration, Tuesday, October 23, 2018

Kansas Court of Appeals

CIVIL

PARENTAGE—STANDING—STATUTORY INTERPRETATION
OSBORN V. ANDERSON
BOURBON DISTRICT COURT—REVERSED AND REMANDED
NO. 118,982—OCTOBER 19, 2018 

FACTS: Although he was not the biological father, Osborn signed a voluntary acknowledgement of paternity for A.O. Osborn and is also listed as A.O.'s father on the birth certificate. Osborn married A.O.'s mother, but the relationship quickly soured and the marriage was annulled. Sadly, A.O. was later killed by Mother's new boyfriend. Osborn filed a wrongful death petition against the boyfriend and DCF officials. Mother and DCF sought dismissal, claiming that Osborn lacked standing because he was not A.O.'s biological father. The district court agreed and summarily dismissed Osborn's suit for lack of standing. Osborn appealed.

ISSUES: (1) Standing; (2) authority to challenge paternity

HELD: Osborn has standing to pursue a wrongful death action only if he is A.O.'s legal father. The annulment between Osborn and Mother did not revoke Osborn's prior acknowledgement of parentage. In the absence of a timely, separate action to revoke the VAP, Osborn's acknowledgement of parentage remains valid even after the annulment. There is no statutory authority that would allow DCF to challenge Osborn's paternity.

STATUTE: K.S.A. 2017 Supp. 23-2204, -2204(b)(1), -2208(a), -2209(a), -2209(b), -2209(e), -2210(a); K.S.A. 60-1902

CHILD IN NEED OF CARE—JURISDICTION
IN RE K.L.B.
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 118,563—OCTOBER 19, 2018

FACTS: Mother brought K.L.B. and another child to Kansas from Kentucky. After being in Kansas for a week, the children were taken into State custody. Mother did not contest the allegations in the child in need of care petition. After Kentucky declined jurisdiction over the children, Mother requested a hearing under the Uniform Child Custody Jurisdiction and Enforcement Act to find out why. Mother was eventually extradited back to Kentucky on criminal charges. Her parental rights were terminated, and Mother appealed.

ISSUES: (1) Jurisdiction under the UCCJEA; (2) sufficiency of the evidence

HELD: There is no evidence that Kentucky ever attempted to initiate child in need of care proceedings for these children. But even in the absence of prior proceedings, Kansas could not acquire initial child-custody jurisdiction under the UCCJEA because Kansas was not the children's home state. However, the facts show that Kansas acquired jurisdiction on an emergency basis. Once Kentucky declined jurisdiction, Kansas was free to continue with this action. The district court's decision to terminate Mother's parental rights was supported by clear and convincing evidence and termination was in the children's best interests.

STATUTE: K.S.A. 2017 Supp. 23-37,102(b), -37,102(l), -37,201, -37,204, -37,204(a), -37,204(b), -37,204(c), 38-2203(b), -2250, -2269(a), -2269(b), -2269(c), -2271

ABUSE OF DISCRETION—CHILD IN NEED OF CARE
IN RE P.J.
SUMNER DISTRICT COURT—AFFIRMED
NO. 119,264—OCTOBER 19, 2018

FACTS: P.J. and siblings came in to State custody after they showed signs of neglect and Mother had unexplained injuries that were consistent with aggravated battery. Mother's children were temporarily removed from her and placed in the care of their respective fathers. The children were adjudicated to be in need of care and left in the care of their fathers. Mother appealed this dispositional order.

ISSUES: (1) Standard of review; (2) sufficiency of the evidence

HELD: There is little precedent to suggest the appropriate standard of review to use when reviewing a dispositional hearing. Because the issues considered at a dispositional hearing are components of a best interests of the child finding, an abuse of discretion standard of review is appropriate. The evidence from the hearing showed that the children were doing fine in placements with their fathers and that the continued placement was appropriate. Because the children are placed with a parent, the district court is not required to decide about reintegration with Mother.

STATUTE: K.S.A. 2017 Supp. 38-2201(b), -2250, -2252, -2253, -2255, -2255(a), -2255(b), -2255(c), -2255(e), -2256, -2257, -2264, -2264(j), -2269

Tags:  abuse of discretion  Bourbon District  Child in Need of Care  parentage  Sedgwick District  statutory interpretation  Sumner District 

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September 18 and 21, 2018 Digests

Posted By Administration, Monday, September 24, 2018

Kansas Supreme Court

Attorney Discipline

ORDER OF DISBARMENT
IN RE MICHAEL P. PELOQUIN
NO. 19,846 — September 18, 2018

FACTS: In a letter dated September 13, 2018, Michael P. Peloquin voluntarily surrendered his license to practice law. At the time of surrender, a formal complaint was pending alleging violations of: KRPC 1.3 (diligence); 1.4 (communication); 1.16 (termination of representation; 3.2 (expediting litigation); 5.5 (unauthorized practice of law); 7.3 (client solicitation); and 8.4 (professional misconduct). There were also allegations that Peloquin violated Supreme Court Rule 218. The court accepted the surrender of Peloquin's license, and he is disbarred.

Civil

BREACH OF TRUST—DAMAGES
ELLIS LIVING TRUST V. ELLIS LIVING TRUST
SEDGWICK DISTRICT COURT—REVERSED and CASE REMANDED
COURT OF APPEALS—REVERSED
NO. 113,097—SEPTEMBER 21, 2018

FACTS: Alain Ellis and her husband, Dr. Harvey Ellis, both executed living trusts. After Alain died, Harvey served as trustee of Alain's trust. The terms of Alain's trust provided that all income went to Harvey during his life. Upon his death, the trust was to be divided equally between the Ellises' two sons, with each receiving income from the principal. While acting as trustee, Harvey improperly converted a substantial amount from Alain's trust and placed the converted assets into his own trust. After Harvey died, the improper transfers were discovered and over $1 million was returned to Alain's trust. Alain's trust and the trust beneficiaries sought additional damages and filed suit against Harvey's trust, Harvey's estate, and individuals who advised Harvey while he was still living. Before trial, the district court ruled that Alain's trust could not seek punitive damages from Harvey's estate because Harvey was deceased. It also concluded that Alain's trust was not entitled to recover double damages. Alain's trust appealed these rulings to the court of appeals, which affirmed the district court's rulings. Alain's petition for review was granted on these two issues.

ISSUES: (1) Punitive damages from a deceased trustee; (2) double damages

HELD: The question of whether a plaintiff can recover punitive damages from the estate of a deceased tortfeaser is an issue of first impression. The Kansas statutes are silent on this issue. But the statutes do provide that an estate can stand in the shoes of a deceased tortfeaser, especially because an estate exists to pay the financial obligations of the deceased. And a threat of punitive damages may serve to discourage wrongdoing by trustees. For these reasons, a trust may seek punitive damages from the estate of a deceased trustee. Since that issue was not put to a jury in this case, the case must be remanded. This rationale also allows for a plaintiff to seek statutory double damages against a trustee's estate because those damages are penal in nature and serve the same purpose as punitive damages.

STATUTE: K.S.A. 58a-1002, -1002(a), -1002(a)(3), -1002(c), 60-1801, -3702, -3702(a), -3702(c), -3702(d), -3703

STATUTE OF FRAUDS
DEWITTE INSURANCE AGENCY V. FINANCIAL ASSOCIATES MIDWEST
JOHNSON DISTRICT COURT—CASE REMANDED
COURT OF APPEALS — REVERSED
NO. 115,126—SEPTEMBER 21, 2018

FACTS: Three individuals worked for Financial Associates as area managers. These individuals trained new insurance agents and provided administrative support. As part of their compensation, the area managers received one percent of the premium paid on all policies from Blue Cross/Blue Shield of Kansas City. This compensation was due to them not only during their employment but after their employment ended, until the policies they had signed were no longer renewed. The payments were made for more than 20 years. After Financial Associates sold its agency to Blue Cross, Blue Cross stopped paying the area managers this one percent premium portion. After the area managers asked for the payment to be resumed and Blue Cross refused, the area managers filed suit claiming breach of contract. The district court decided in favor of Financial Associates, concluding that the area managers' contracts did not govern the one percent premium payment and that any oral agreement to make that payment was unenforceable under the statute of frauds. The Court of Appeals affirmed, and the area managers' petition for review was granted on the statute of frauds issue.

ISSUE: (1) Statute of frauds full-performance exception

HELD: The plain language of K.S.A. 33-106 does not include any exceptions to the statute of frauds. But the full-performance exception to the statute of frauds was developed in common law and recognized in Kansas shortly after statehood. The legislature's failure to change the statute shows that the legislature has acquiesced to the full-performance exception. In Kansas, the full-performance exception requires the full performance of only one party to an agreement. Because the area managers performed their part of the contract for over 20 years, the full-performance exception applies, and the alleged oral agreement is removed from the statute of frauds.

STATUTE: K.S.A. 33-106

Kansas Court of Appeals

Civil

ADMINISTRATIVE LAW—DUI
PEARSON V. DEPARTMENT OF REVENUE
WYANDOTTE DISTRICT COURT—REVERSED AND DISMISSED
NO. 118,696—SEPTEMBER 21, 2018

FACTS: Pearson was arrested and his breath test showed alcohol levels above the legal limit. After being served with a suspension notice, Pearson timely requested an administrative hearing with the Department of Revenue. Pearson appeared for the scheduled hearing but the arresting officer did not, and the hearing officer dismissed the suspension order. A few days later, the hearing officer learned that the officer had attempted to notify officials that he was hospitalized and would not be able to attend the hearing. After receiving that information, the hearing officer withdrew the dismissal order and set a new hearing date to consider Pearson's suspension. Pearson objected, but the hearing was held and a new hearing officer affirmed the suspension of Pearson's driver's license. After Pearson filed a petition for judicial review, the district court affirmed, finding that the hearing officer was a party to the proceedings and could withdraw the dismissal. Pearson appealed.

ISSUES: (1) Jurisdiction; (2) ability to withdraw an order

HELD: The order withdrawing the dismissal and setting the matter for a second hearing was not a final agency action. As such, Pearson could not have filed a petition for judicial review of that order. Pearson was allowed to appeal only at the conclusion of the second proceeding, where the new hearing officer affirmed the suspension of his driving privileges. There is no express or implicit statutory authority to allow a hearing officer to reconsider, grant a rehearing, or set aside an administrative suspension order after the order's effective date. The district court erred when it found that the hearing officer was a party to the action, giving her the authority to withdraw the order of dismissal. In the absence of a request for reconsideration, the hearing officer could not withdraw the order of dismissal and reinstate the proceedings against Pearson.

STATUTES: K.S.A. 2017 Supp. 8-259(a), -1002, -1002(a), -1002(f), -1020, -1020(d)(1), -1020(k), -1020(m), -1020(n), -1020(o), -1020(p), -1020(q), 77-621(a)(1); and K.S.A. 77-607(a), -607(b)(1), -607(b)(2)

Tags:  Attorney Discipline  Johnson District  Sedgwick District  Wyandotte District 

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September 14, 2018 Digests

Posted By Administration, Monday, September 17, 2018

Kansas Court of Appeals

Civil

DIVORCE — STATUTORY CONSTRUCTION
IN RE MARRIAGE OF GERLEMAN
DOUGLAS DISTRICT COURT – REVERSED AND REMANDED
NO. 118,457 – SEPTEMBER 14, 2018

FACTS: After a contentious divorce, the district court entered judgment against Robert Gerleman for back spousal maintenance owed to Jeannette, as well as judgment on Robert's previous agreement to pay Jeannette a portion of his military retirement pay. In an effort to collect past-due amounts, the district court issued orders of garnishment to Robert's employer. Robert's father was diagnosed with brain cancer in 2017, and Robert took off more than two weeks from work in order to assist his father during surgery and treatment. Citing K.S.A. 60-2310(c), Robert asked that the garnishment be released because of the illness and his inability to work. The district court refused to issue the release, and Robert appealed.

ISSUE: (1) Interpretation of K.S.A. 60-2310(c)

HELD: K.S.A. 60-2310(c) allows for a release of garnishment if the debtor is prevented from working for more than two weeks because of illness of the debtor or any family member of the debtor. Under the plain meaning of the statute, Robert's father is "any member" of Robert's family. There is no requirement in the statute that the family member be an immediate family member residing with the debtor. The affidavit submitted by Robert was sufficient to prove that he missed work for more than two weeks while caring for his father. The district court's decision is reversed, and the case is remanded for a factual determination about when the garnishment could resume.

STATUTES: K.S.A. 2017 Supp. 17-2205(a)(4)(A), 60-2310(c)

criminal

criminal procedure — motions — sentences — statutes
State v. Smith
Sedgwick District Court – sentence vacated, case remanded
No. 118,042 — September 14, 2018

FACTS: Smith convicted in 2006 of aggravated kidnapping. In 2014 he filed a K.S.A. 22-3504 motion to correct an illegal sentence, challenging the sentencing court’s criminal history scoring of a South Carolina burglary conviction as a personal felony in Smith’s criminal history. District court denied the motion and Smith appealed. In unpublished opinion the Court of Appeals vacated Smith’s sentence and remanded for resentencing. On remand, district court again found the South Carolina conviction to be a person felony, and denied Smith’s motion. Smith appealed. Issue before the panel centers on whether the holding in State v. Wetrich, 307 Kan. 552 (2018), was a change in the law that occurred after Smith was sentenced. State argued it was, and through retroactive application of the 2017 amendment to K.S.A. 22-3504, Smith’s sentence was not an illegal sentence.

ISSUE: (1) Sentencing and (2) Classification of an Out of State Conviction

HELD: Kansas Supreme Court’s decision in Wetrich was not a change in the law within the meaning of the 2017 amendment to the definition of an illegal sentence in K.S.A. 2017 Supp. 22-3504(3).  Instead, the decision reinterpreted the meaning of the term “comparable offenses” within the Kansas Sentencing Guidelines Act. No final decision on whether the 2017 amendment to K.S.A. 22-3504 can apply retroactively in Smith’s case, but panel rejects State’s claim that that 2017 amendment defining an illegal sentence is jurisdictional. Here, the South Carolina burglary statute that Smith was convicted under is not identical to or narrower than the Kansas burglary statute in effect when Smith committed his current crime of conviction, thus based on holding in Wetrich, Smith’s prior South Carolina burglary cannot be scored as person felony for criminal history purposes. Sentence is vacated and case is remanded for resentencing to classify the South Carolina burglary as a nonperson felony.

STATUTES: K.S.A. 2017 Supp. 21-6810(a), -6811(d), -6811(e), -6811(e)(3), 22-3504(1), -3504(3); K.S.A. 1993 Supp. 21-4711(e); K.S.A. 21-3110(7), -3715, -4711(e), 22-3504, 60-1507(f)

Tags:  divorce  Douglas District  motions  Sedgwick District  statutory construction 

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August 31, 2018 Digests

Posted By Administration, Tuesday, September 4, 2018
Updated: Tuesday, September 4, 2018

Kansas Supreme Court

Criminal

criminal law—criminal procedure–probation—sentencing—statutes
State v. Sandoval
Sedgwick district court—affirmed
court of appeals—affirmed
No. 113,299—august 31, 2018

FACTS: Sandoval was convicted in 2011 of aggravated indecent solicitation. Probation was ordered with an underlying 34 month prison term and 24 month postrelease supervision. Probation revoked in 2012. District judge denied defense request for modification, and ordered service of the original underlying sentence. Later recognizing the 24-month postrelease supervision did not comply with the sentencing statute at the time of Sandoval’s crime, State filed K.S.A. 22-3504 motion seeking substitution of lifetime postrelease supervision. District judge granted the motion. Sandoval appealed, arguing the district judge was empowered by K.S.A. 2017 Supp. 22-3716(b)(3)(B)(iii) to impose a lesser sentence than the lifetime term required at the original sentence, thus no illegality existed in the postrevocation sentence. Court of appeals affirmed in unpublished opinion. Sandoval’s petition for review granted.

ISSUE: Sentencing after probation revocation

HELD: After revoking probation, a district judge may choose to sentence anew, even if some component of the original sentence was illegal because it failed to match a mandatory statutory minimum. In the alternative, a judge may simply require the defendant to serve the original sentence. If a new sentence is pronounced from the bench after probation revocation, any original illegality no longer exists, and the new sentence is not subject to challenge or correction under K.S.A. 22-3504. If the judge instead requires the defendant to serve the original sentence, any original illegality continues to exist and is subject to challenge or correction under K.S.A. 22-3504(1). Here, no new sentence was imposed. The judge who revoked Sandoval’s probation explicitly declined to modify the original sentence and required Sandoval to serve it. This left an illegal postrelease term in place and open to correction. State v. McKnight, 292 Kan. 776 (2011), is factually distinguished.

CONCURRENCE (Beier, J.)(joined by Nuss, C.J., and Biles, J.): Write separately to reinforce majority’s decision with alternative and more broadly applicable plain language rationale. K.S.A. 2017 Supp. 22-3716(b)(3)(B), read as a whole including introductory “[e]xcept as otherwise provided,” has additional benefit of harmonizing the statute with the explicit purpose of the Kansas Sentencing Guidelines Act: uniformity. 

DISSENT (Johnson, J.)(joined by Rosen, J.): A judge pronouncing sentence after probation revocation inevitably sentences anew, and any illegality in the original sentence no longer exists. While judge in this case did not appreciate at time of revocation the error in the postrelease supervision term in the original sentence, when he refused to modify that term, he effectively reduced it. This reduction was legal and could not be modified through a motion under K.S.A. 22-3504.  Facts in this case are not meaningfully different from McKnight. Would vacate the lifetime postrelease supervision component of the sentence and remand for journal entry substituting a term of 24 months. 

STATUTES: K.S.A. 2017 Supp. 22-3504(3), -3716)(b)(3)(B)(iii); K.S.A. 21-6806(c), 22-2201(3), -3504, -3504(1), -3716, -3716(b), -3717(d)(1)(B), -3717(d)(1)(G), -3717(d)(2)(G)

 

criminal law—criminal procedure—probation—sentencing—statutes
state v. roth
finney district court—reversed and remanded
court of appeals—affirmed
No. 113,753—august 31, 2018

FACTS: Roth was convicted of aggravated sexual battery and two counts of aggravated burglary. Sixty months of probation ordered with underlying prison term totaling 102 months and 24 month postrelease supervision. When probation was revoked in 2010, district judge modified the prison term to run the three sentences concurrently instead of consecutively, with the 24-month postrelease supervision period. In 2014, State filed motion to correct an illegal sentence, seeking the mandatory lifetime postrelease supervision for Roth’s crime. Roth argued the postrelease supervision component of the postrevocation sentence was a legal “lesser sentence” under K.S.A. 2017 Supp. 22-3716(b)(3)(B)(iii). District judge ruled the 24-month postrelease term was illegal and ordered lifetime postrelease supervision. Roth appealed. Count of appeals affirmed in unpublished opinion. Roth’s petition for review granted. 

ISSUE: Sentencing after probation revocation

HELD: As in Sandoval (decided this same date), Roth’s appeal addresses limits of a district judge’s sentencing power after probation revocation. Here, the judge who revoked probation chose to give Roth a “lesser sentence” as expressly permitted by K.S.A. 2017 Supp. 22-3716(b)(3)(B)(iii), and this new sentence was not subject to challenge or correction under K.S.A. 22-3504. Court of appeals is reversed. Lifetime postrelease supervision component of Roth’s sentence is vacated and case is remanded for journal entry modifying the sentence to substitute a term of 24 months of postrelease supervision. 

CONCURRENCE (Johnson, J.)(joined by Rosen, J.): Concurs for same reasons set out in his dissent in Sandoval.

DISSENT (Beier, J.)(joined by Nuss, C.J., and Biles, J.): Dissents for reasons set out in her concurrence in Sandoval.

STATUTES: K.S.A. 2017 Supp. 22-3716(b)(3)(B), -3716(b)(3)(B)(iii); K.S.A. 2010 Supp. 22-3717(d)(1)(G), -3717(d)(2)(I); K.S.A. 21-3518(a)(1), -3716, 22-3504, -3504(1)

Tags:  Concurrence  Dissent  Finney District  Sedgwick District 

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August 17, 2018 Digests

Posted By Administration, Tuesday, August 21, 2018

Kansas Supreme Court

Criminal

criminal procedure—statutes—witnesses
state v. brosseit
franklin district court—affirmed
court of appeals—affirmed
No. 114,753—august 17, 2018

FACTS: Brosseit was convicted of DUI. At trial, State sought endorsement of a person not identified in the complaint as a potential witness—the EMS paramedic (Harris) who drew Brosseit’s blood sample. District court allowed the late endorsement. Brosseit appealed, claiming in part that K.S.A. 22-3201(g) requires the State to endorse all known witnesses when it files the complaint, and only permits endorsement after that time if the State was unaware of the witness when it filed the complaint. State argued this claim was not preserved in district court. Court of appeals affirmed in unpublished opinion without addressing preservation. Review granted on this claim and argument that K.S.A. 22-3201(g) had been wrongly interpreted.

ISSUES: (1) Preservation of issue for appellate review, (2) late endorsement of a witness

HELD:  As in State v. Gray, 306 Kan. 1287 (2017), State failed to cross-petition for review of Court of Appeals conclusion or lack thereof regarding preservation. Nor did the State submit a response to the petition for review. The preservation issue thus is not before the Kansas Supreme Court.

In light of ambiguity in the statute and the legislature’s more than century-long acquiescence, the doctrine of stare decisis is followed. Kansas Supreme Court cases interpreting K.S.A. 22-3201(g) and its predecessors are upheld. To show reversible error on appeal, the defendant must have objected to the late endorsement, requested a continuance, and been denied that continuance. In this case, Brosseit did not request a continuance. Court of appeals is affirmed.

CONCURRENCE (Rosen, J., joined by Johnson and Stegall, JJ.): Concurs in the result only. Does not agree with majority’s interpretation of K.S.A. 22-3201(g). On plain language of the statute, the long-standing interpretation of K.S.A. 22-3201(g) is incorrect. Would hold that if the State wishes to endorse a witness after it has filed its complaint, then the State has a duty to show that it was unaware of the witness at the time of filing. The district court erred in allowing State to endorse Harris on the day of trial, but under facts in the case the error was harmless.

STATUTE: K.S.A. 2013 Supp. 8-1567(a)(1), -1567(a)(2), -1567(a)(3); K.S.A. 22-3201(g)

appeals—criminal procedure—criminal law—evidence—statutes
state v. campbell
sedgwick district court—affirmed
no. 116,430—august 17, 2018

FACTS: Jury convicted Campbell of first-degree premeditated murder of his wife. On appeal, Campbell first claimed the State improperly rehabilitated a jailhouse informant by introducing testimony of former prosecutor (Morehead) regarding past instances when the informant was credible, but State contends defense counsel failed to preserve this argument with an appropriate objection. Second; he claimed district court erred by admitting testimony of a witness who described Campbell as controlling of his wife. Campbell contends this evidence was inadmissible under K.S.A. 2017 Supp. 60-455 because it did not constitute evidence of a “crime or civil wrong,” but State counters this evidence of marital discord was properly admitted through K.S.A. 60-455. Third; he claimed the jury should have been instructed on a heat-of-passion voluntary manslaughter based on Campbell’s sudden quarrel with his wife. And fourth; he claimed cumulative error denied him a fair trial.

ISSUES: (1) Appellate review of Witness Rehabilitation claim, (2) evidence of marital discord, (3) voluntary manslaughter jury instruction, (4) cumulative error

HELD: Campbell objected to Morehead’s testimony on grounds of hearsay and of bolstering or vouching for the informant’s credibility. He now asserts for first time on appeal the more salient objection that Morehead’s proposed testimony would violate the specific instances rule. This newly asserted challenge on appeal is not considered.

District court properly admitted testimony describing Campbell as controlling of his wife. Prior caselaw on marital discord evidence is reviewed, with modification to the holding in State v. Gunby, 282 Kan.39 (2006). Evidence of discord in a marital relationship that does not amount to a crime or civil wrong is not subject to the limitations of K.S.A. 2017 Supp. 60-455. Under facts in this case, the evidence of discord was not subject to K.S.A. 2017 Supp. 60-455. District court’s admission of this evidence is affirmed.

An instruction for heat-of-passion voluntary manslaughter, which would have been legally appropriate, was not factually appropriate in this case.

Cumulative error doctrine not applicable where no error has been found.  

DISSENT (Johnson, J.): Disagrees that the defense objection to Morehead testifying was not preserved for appeal. District court’s error in allowing the testimony was not the result of a misunderstanding as to the reasons the defense objected to the testimony. Would address the issue, find in favor of the defendant, reverse the conviction, and remand for a new trial.

STATUTES: K.S.A. 2017 Supp. 21-5404, 22-3601(b)(3), 60-455; K.S.A. 60-404, -422, -455

 

criminal procedure—probation—sentencing
state v. horton
leavenworth district court—affirmed
court of appeals—affirmed
no. 115,051—august 17, 2018 

FACTS: Horton was convicted of residential burglary and felony theft. At a November 1998 sentencing, probation was ordered with understanding that the first part of probation would be served in jail because Horton had other charges pending. District court granted State’s December 1998 motion to revoke probation based on Horton’s failure to report. In 2015, Horton filed a pro se K.S.A. 22-3504 motion to correct an illegal sentence, arguing the district court erred in revoking probation because it was impossible for Horton to report as required when he was incarcerated for other offenses. District court summarily dismissed the motion. Horton appealed. Court of appeals affirmed in unpublished opinion. Horton’s petition for review granted.

ISSUE: Motion to correct an illegal sentence - probation revocation

HELD: The two-step probation revocation process is analogous to the conviction and sentencing process. A probation violator cannot use K.S.A. 22-3504 to collaterally attack the district court’s guilty determination at a probation violation hearing. A revoked probationer must directly attack the factual determination that a probation violation occurred. District court’s summary dismissal of Horton’s claim is affirmed.

STATUTE: K.S.A. 22-3504, -3504(1), -3716, -3716(b)

 

appeals—criminal procedure—evidence—judges
state v. smith
sedgwick district court—reversed and remanded
no. 116,968—august 17, 2018

FACTS: Smith convicted in 1993 of first-degree felony murder, aggravated kidnapping, aggravated robbery, and possession of a firearm by a minor. Twenty years later, he filed a pro se motion to file a direct appeal out of time, claiming his defense counsel never acted on Smith’s request to file an appeal. Kansas Supreme Court remanded to district court for an Ortiz  hearing to determine if Smith was eligible to appeal out of time. District court denied the motion, making no findings but referencing Smith’s failure to do anything for all the years. Holding the length of time is a factor but not a threshold bar, Kansas Supreme Court remanded to district court to determine credibility of Smith’s testimony that he repeatedly tried throughout 1993 and 1994 to tell his attorney to file an appeal. State v. Smith, 304 Kan. 916 (2016). Second Ortiz hearing held before a different judge who denied the motion to appeal out of time, finding Smith’s testimony was not credible. Smith appealed, arguing the district court arbitrarily disregarded undisputed testimony that he told his trial counsel he wanted to appeal.

ISSUE: Appearance of judicial bias and prejudice

HELD: Court reviews the district court’s stated reasons for denying the motion and notes the failure to consider the potentially corroborating testimony of Smith’s grandmother. In two stated reasons—Smith’s taste in music and Smith’s tattoos/brands—the district court improperly considered information irrelevant to the credibility determination and applied a negative stereotype. Also, district court inappropriately conducted independent factual research through a post-hearing sua sponte request to department of corrections for Smith’s tattoo/brand information, and failed to provide parties reasonable opportunity to respond before denying Smith’s motion. Reversed and remanded for a new Ortiz hearing before a different judge to consider only evidence in the record that is relevant to Smith’s credibility.

STATUTES: K.S.A. 2017 Supp. 22-3601; K.S.A. 1993 Supp. 21-4701 et seq.; K.S.A. 60-401(b), 409, -409(b)(4), -410, -410(a), -412(d)

Kansas Court of Appeals

 

Civil

DEBTOR AND CREDITOR—EQUITY—SUCCESSION
WELLS FARGO VENDOR FINANCIAL SERVICES V. NATIONWIDE LEARNING
WYANDOTTE DISTRICT COURT—AFFIRMED IN PART—REVERSED IN PART
NO. 118,334—AUGUST 17, 2018

FACTS: Nationwide Learning, Inc. created kits for teachers and students that allowed for publication of books which contained student-created content. At the time it was incorporated, Nationwide borrowed almost $5 million from C3 Capital Partners. As the business evolved, Wells Fargo obtained lease agreements on three printers. C3 ultimately foreclosed on Nationwide's assets and conveyed them to Studentreasures. Wells Fargo repossessed its collateral and sold the printers. It then sued Nationwide, which was defunct, for breaching the printer lease agreement. Wells Fargo also sued Studentreasures for both actual and punitive damages on theories of successor liability and violation of the Kansas Uniform Fraudulent Transfer Act. The district court awarded Wells Fargo in excess of $490,000 in damages and attorney fees but denied all other claims. Wells Fargo appealed.

ISSUES: (1) Successor liability; (2) application of fraudulent avoidance of debt exception; (3) liability under KUFTA; (4) punitive damages

HELD: Kansas generally recognizes the general rule of successor nonliability, with four exceptions. Successor liability is applied sparingly and must only be used when required by equity. In this case, the district court made errors of law when evaluating certain tests. Because Studentreasures is a mere continuation of Nationwide, the imposition of successor liability is warranted. To apply the fraudulent avoidance of debt exception to successor liability, Wells Fargo must prove, by clear and convincing evidence, actual fraud. That proof did not exist in this case. Because no assets were transferred, the KUFTA cannot apply. In the absence of willful or wanton conduct, the district court correctly denied the motion for punitive damages.

STATUTES: K.S.A. 2017 Supp. 84-1-103(b), 84-9-617; K.S.A. 33-201(1), -201(b)(1), -201(h), -203(b), -204(a)(1), -204(b), 60-3702(c)

Tags:  8/17/2018  Franklin District  Leavenworth District  Sedgwick District  Wyandotte District 

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December 8, 2017 Digests

Posted By Administration, Monday, December 11, 2017

Kansas Supreme Court

criminal

criminal procedure
state v. beck
sedgwick district court—affirmed
115,219—december 8, 2017

FACTS: Beck was convicted on guilty pleas pursuant to plea agreement recommending concurrent sentences. District court accepted the pleas, imposed a hard-25 sentence for the first-degree murder conviction and a downward departure sentence for the attempted first-degree murder conviction, and ordered the sentences to be served consecutively. Beck appealed, arguing the district court erred by refusing to follow the plea agreement’s recommendation for concurrent sentences.   

ISSUE: Sentencing—plea agreement

HELD: No abuse of sentencing court’s discretion. Sentence recommendations made pursuant to a plea agreement are not binding on a sentencing court. 

STATUTES: K.S.A. 2016 Supp. 22-3601(b)(3); K.S.A. 2013 Supp. 21-5301(c)(1), -6804

 

Kansas Court of Appeals

CIVIL

CONTRACTS—SETTLEMENTS
JAMES COLBURN REVOCABLE TRUST V. HUMMON CORPORATION
BARBER DISTRICT COURT—AFFIRMED
NO. 117,584—DECEMBER 8, 2017

FACTS: Hummon Corporation leased a saltwater disposal well. The Trust owned a two-thirds interest in the land on which the well was located. In 2015, Trust administrators sued Hummon alleging that it failed to pay for its use of the well after the lease expired. Hummon admitted that it owed some compensation to the Trust for using the well beyond the lease term, but it disputed the amount requested by the Trust. All parties agreed to mediation. That process produced a mediation agreement which required Hummon to pay $42,500 and to remove certain equipment from the site. In exchange, the Trust agreed to assign to Hummon any interest owned in a steel pipeline and to assign Hummon an easement for pipeline access. A dispute arose over the extent of that easement. After the Trust filed suit to enforce the mediation agreement, the district court agreed that the mediation agreement was specific and enforceable. Hummon appealed.

ISSUES: (1) Adequacy of consideration; (2) existence of condition precedent; (3) validity of mediation agreement; (4) reasonableness of mediation agreement

HELD: The text of the mediation agreement shows sufficient consideration. The record shows that Hummon did not raise the issue of a condition precedent before the district court. For that reason, and in the absence of any compelling reason for the court to consider the issue, the panel declines to address the merits of Hummon's complaint about the performance of a condition precedent. The mediation agreement was not so vague or indefinite to be unenforceable. The district court's interpretation of the mediation agreement was consistent with its plain language.

STATUTES: No statutes cited.

criminal

appeals—constitutional law—criminal procedure—statutes
state v. dawson
sedgwick district court—affirmed
116,530—december 8, 2017

FACTS: Dawson convicted in 1997 of rape. After unsuccessful challenges to conversion of his misdemeanor convictions to calculate criminal history, the convictions and sentence became final in March 2000. After State v. Dickey, 301 Kan. 1018 (2015), Dawson filed motion to correct an illegal sentence. District court summarily denied the motion, stating Apprendi and Dickey did not apply retroactively to a final sentence. Dawson appealed, arguing an incorrect criminal history classification can be challenged at any time. At panel’s request, parties addressed impact of 2017 amendment to K.S.A. 22-3504 which became effective after briefs had been filed.

ISSUES: (1) 2017 Amendment to K.S.A. 22-3504, (2) criminal history calculation

HELD: Dickey and subsequent cases were discussed. K.S.A. 22-3504(3), as amended in 2017, clarified the intended application of the term “illegal sentence” used in K.S.A. 22-3504(1). The amendment is procedural in nature and applies retroactively. A sentence is not an illegal sentence based on holding in Dickey if that sentence was final prior to Apprendi. Dawson’s sentence was legal when pronounced, and was not rendered illegal by the subsequent change in the law. District court’s summary denial of the motion to correct an illegal sentence was not error.

Any right to appellate review of claim concerning the conversion of Dawson’s misdemeanor convictions has been exhausted and is barred by res judicata.

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

Tags:  Barber District  Sedgwick District 

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November 22, 2017 Digest

Posted By Administration, Tuesday, November 28, 2017
Updated: Monday, November 27, 2017

Kansas Court of Appeals

CRIMINAL

CRIMES AND PUNISHMENT—SENTENCES—STATUTES
STATE v. FOWLER
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 116,803—NOVEMBER 22, 2017

FACTS: Fowler pled guilty to felony domestic battery, felony possession of methamphetamine, and misdemeanor violation of a protective order. The domestic battery offense was charged as a felony because he had been convicted of domestic battery twice within the past five years. The anticipated presumptive probation for the primary crime of possession of methamphetamine, however, was altered to presumptive prison when the presentence investigation report calculated Fowler’s criminal history by aggregating six prior misdemeanors to two person felonies. To follow spirit of the plea agreement, State joined Fowler’s request for a dispositional departure to probation. District court denied the motion and imposed sentence which included prison term for the primary crime of felony possession of methamphetamine. Fowler appealed, arguing for first time the sentence was illegal because the sentencing court, in violation of K.S.A. 2015 Supp. 21-6810(d)(9) of the Kansas Sentencing Guidelines Act (KSGA), “double counted” two of Fowler’s prior person misdemeanor convictions both to enhance the domestic battery conviction from a misdemeanor to a felony and to elevate Fowler’s criminal history.

ISSUE: Sentencing - use of prior misdemeanor domestic battery convictions

HELD: Reasoning in State v. Vontress,  266 Kan. 248 (1998), reaffirmed in State v. Davis, 275 Kan. 107 (2003), was discussed and applied. Fowler was properly charged with felony domestic battery, a non-grid felony. The KSGA sentencing grid is inapplicable to this crime because the crime has its own sentencing scheme with no severity level designation. Felony domestic battery thus cannot be designated as the primary crime for the purpose of applying a criminal history score to calculate a sentence. District court properly designated Fowler’s methamphetamine conviction as the primary crime of conviction for purpose of calculating Fowler’s base sentence, and correctly calculated Fowler’s criminal history score because Fowler’s two prior domestic battery convictions were not used to elevate the classification of the primary crime. 

DISSENT (Malone, J.): Use of Fowler’s two prior domestic battery convictions to calculate his criminal history and to elevate the domestic battery conviction from a misdemeanor to a felony violates the plan language of K.S.A. 2015 Supp. 21-6819(d)(9). Vontress is distinguishable from Fowler’s case. Would vacate Fowler’s sentence and remand for resentencing.  

STATUTES: K.S.A. 2015 Supp. 5414, -5414(a), -5414(b), -5414(b)(3), -6803(d), -6804(a), -6804(c), -6804(i)(1), -6804(i)(3), -6805(a), -6806(c), -6806(d), -6809, -6810, -6810(d)(9), -6811, -6811(a), -6819(b), -6819(b)(2), -6819(b)(3), -6819(b)(5); K.S.A. 21-4710, -4710(d)(11), -4720, 22-3504(1)

Tags:  crimes and punishment  Dissent  Sedgwick  Sedgwick District  sentences  statutes 

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