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November 27, 2019 Digests

Posted By Administration, Monday, December 2, 2019

Kansas Supreme Court

criminaL

constitutional law—criminal procedure—motions—sentences
state v. bryant
wyandotte district court—affirmed
no. 118,848—november 27, 2019

FACTS: Bryant was convicted in 2005 of first-degree murder and aggravated robbery. Sentence imposed included criminal history calculated using three 1981 Missouri convictions for second-degree burglary as person felonies. Bryant filed 2014 motion to correct an illegal sentence, challenging the classification of his 1981 Missouri burglaries as person crimes. District court denied the motion. Bryant appealed, arguing subsequent changes in the law rendered his sentence illegal, and the district judge unconstitutionally engaged in fact-finding when he designated the 1981 Missouri convictions as person felonies.

ISSUE: (1) Motion to correct illegal sentence—out of state convictions

HELD: State v. Murdock, 309 Kan. 585 (2019)(Murdock II), forecloses Bryant’s argument that the sentence imposed is illegal due to subsequent changes in the law. Bryant failed to establish that his sentence was illegal at the time it was imposed, and he cannot use a motion to correct an illegal sentence to argue that his sentence is unconstitutional.   

STATUTES: K.S.A. 2018 Supp. 21-6801 et seq., 22-3504(1), -3504(3); K.S.A. 22-3504

constitutional law—criminal procedure—judges—trials 
state v. johnson
sedgwick district court—affirmed in part, reversed in part
court of appeals—reversed and remanded
no. 113,228—november 27, 2019

FACTS: Johnson convicted of criminal possession of a firearm, aggravated assault, and felony criminal discharge of a firearm. During afternoon recess once jury was seated, parties and the court agreed to Johnson’s evidentiary stipulation to a juvenile adjudication for an act that would constitute a felony if done by an adult. Trial began that same afternoon with the admission of exhibits and court rulings on objections. The next day, the trial judge acknowledged he had nodded off after State had begun its case-in-chief. Parties declined trial court’s invitation for motion to seek mistrial. On appeal, Johnson claimed in part the trial judge committed structural error and failed to obtain a valid jury waiver regarding Johnson’s stipulation. Court of Appeals, comparing a sleeping judge to one who was physically absent from the bench, reversed and found the trial judge committed structural error. Panel also found a jury waiver was unnecessary to Johnson’s stipulation to an element of the crimes charged. 53 Kan.App.2d 734 (2017). Review granted on these panel decisions.

ISSUES: (1) Structural error; (2) jury waiver

HELD: An isolated incident of a trial judge nodding off during a portion of testimony where no objections were made does not create structural error requiring automatic reversal. While trial judge’s inattention in this case appears significant and serious, it is not reasonable to equate the judge’s nodding off to facts in cases involving a judge who physically left the bench. U.S. Supreme Court has not included a judge nodding off (or even a physically absent judge) in identifying the limited class of structural errors. And even in circumstances of actual judicial absence, some courts have refused to apply structural error. Case remanded to Court of Appeals to examine and rule upon in the first instance whether Johnson is entitled to relief based on trial court’s judicial misconduct, and for further consideration of all issues Johnson raised on appeal in light of today’s decision.

District court erred when it accepted Johnson’s elemental stipulation without first obtaining a knowing and voluntary jury trial waiver on the record.

STATUTE: K.S.A. 2013 Supp. 22-4905(b)(2)

Kansas Court of Appeals

Civil

HABEAS CORPUS—RETALIATORY CLAIMS
GRAMMER V. KANSAS DEPARTMENT OF CORRECTIONS
ELLSWORTH DISTRICT COURT—AFFIRMED
NO. 120,909—NOVEMBER 27, 2019

FACTS: While Grammer was incarcerated, the Kansas Department of Corrections seized several personal magazines from him. Grammer filed multiple appeals of these seizures through the KDOC administrative process. Grammer was successful in several appeals, but by the time rulings were made, the magazines had been thrown away and couldn't be returned to Grammer. Frustrated, Grammer sent a letter to the ACLU explaining about KDOC's magazine-seizure policy. The ACLU responded and initiated a correspondence which lasted for a few months. During this same time period, Grammer's sister asked KDOC to transfer Grammer from Hutchinson to Lansing, so that his ill and elderly mother could visit him. That request was granted. Grammer was housed on an upper level of the facility, and he filed a grievance claiming that accessing his living space aggravated his knee injury. Shortly thereafter, Grammer was transferred again, to Ellsworth. Grammer filed another grievance in which he claimed that this transfer was in retaliation for his complaints about his living quarters and his communication with the ACLU. After his grievances were denied, Grammer filed a K.S.A. 60-1501 petition. After hearing arguments from the parties, the district court denied the petition, finding that Grammer failed to prove that his facility moves were in retaliation for his grievances. Grammer appealed.

ISSUE: (1) Whether petition showed a prima facie case of retaliation

HELD: Prison officials may not retaliate against an inmate based on an inmate's exercise of protected rights. In this case, the district court correctly found that Grammer failed to prove that his transfers were made for retaliatory reasons. Although Grammer unquestionably engaged in a protected activity, there is no evidence that any of his facility transfers made it harder for him to engage in that activity. And although it was not required to do so, KDOC provided evidence of a legitimate reason for the transfers. For those reasons, the district court correctly denied Grammer's petition.

STATUTES: 42 U.S.C. §1983; K.S.A. 2016 Supp. 75-5206; K.S.A. 60-1501

 

criminal

constitutional law—criminal procedure—evidence—fourth amendment
state v. gonzalez
coffey district court—reversed and remanded
no. 119,212—november 27, 2019

FACTS: Gonzalez stopped for speeding and given a warning. Officer then employed “Kansas two step” to continue questioning and obtain consent to search the vehicle. Gonzalez filed motions to suppress drug evidence discovered in the search, claiming the officer unlawfully extended the traffic stop and lacked reasonable cause to search. He also claimed he was stopped on the basis of his race and other bias-based policing. District court denied the motions and convicted Gonzalez of drug offenses. On appeal Gonzalez challenged the district court’s denial of motions to suppress.   

ISSUE: (1) Search and seizure—traffic stop

HELD: District court erred in finding Gonzalez’ continued detention after conclusion of the lawful traffic stop was a consensual encounter. Under totality of circumstances test stated in State v. McGinnis, 290 Kan. 547 (2010), a reasonable person would not have felt free to refuse the request for additional information or otherwise end the encounter after the officer turned around and asked Gonzalez if he would answer a few more questions. Consensual indicators set forth in State v. Thompson, 284 Kan. 763 (2007), are stated and applied. Because evidence seized as a result of the illegal detention in this case must be suppressed, no need to address alternative claim that suppression is required because officer unlawfully used national origin as a basis to justify the traffic stop.

STATUTES: None

criminal law—evidence—statutes
state v. kane
sedgwick district court—affirmed
no. 119,749—november 27, 2019

FACTS: Kane robbed a restaurant by escorting an employee at gunpoint into the restaurant, and shooting the restaurant owner while leaving. Jury convicted him of aggravated robbery, aggravated burglary, aggravated battery, attempted first-degree murder, kidnapping, and criminal possession of a weapon. Kane appealed, arguing insufficient evidence supported two of his convictions because: (1) there was no credible evidence of premeditation, an element of attempted first-degree murder; and (2) his interactions with the employee forced at gunpoint from the dumpster into restaurant’s back door did not facilitate the robbery as required by K.S.A. 2018 Supp. 21-5408(a)(2).

ISSUES: (1) Sufficiency of the evidence—premeditation; (2) sufficiency of the evidence—kidnapping

HELD: State presented both direct and circumstantial evidence of Kane’s premeditation. Viewed in the light most favorable to the State, there was sufficient evidence presented at trial to support the attempted first-degree murder conviction.

Sufficient evidence supported Kane’s kidnapping conviction. State v. Buggs, 219 Kan. 203 (1976), interpreted what it meant to “facilitate” a crime under the kidnapping statute. Factors stated in Buggs, while not specifically articulated in the kidnapping statute, are binding. A court may find a taking or confinement has independent significance from another crime for purposes of the kidnapping statute not only when an act actually makes a crime substantially easier to commit but also when the act has the potential to do so, even if the defendant never received the anticipated benefit. It is the nature of the act, not its result, that is legally important. Here, moving the employee from a public alley to inside the restaurant substantially decreased the risk of detection. That the employee escaped almost immediately upon reentering the restaurant does not impact the significance of Kane’s actions.

STATUTE: K.S.A. 2018 Supp. 21-5408(a)(2),- 5420.

Tags:  Ellsworth District  kidnapping  premediation  search and seizure  Sedgwick District  traffic stop  Weekly20191203  Wyandotte District 

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July 19, 2019 Digests

Posted By Administration, Tuesday, July 23, 2019

Kansas Supreme Court

CIVIL

CONTEMPT
IN RE PATERNITY OF S.M.J. V. OGLE
DOUGLAS DISTRICT COURT—COURT OF APPEALS IS AFFIRMED
DISTRICT COURT IS VACATED—CASE REMANDED
NO. 115,776—JULY 19, 2019

FACTS: Ogle and Jacobs were involved in a paternity and custody proceeding. It turned contentious, enough that the district court ordered Ogle to cease widespread slander of Jacobs. Ogle did not stop, and Jacobs moved the court to hold him in indirect contempt after his comments caused her to lose her job. The district court held Ogle in indirect contempt, even though neither Ogle nor his attorney appeared at the contempt hearing. Ogle appealed and the court of appeals vacated the contempt finding, holding that the district court could not hold Ogle in indirect contempt when he did not appear at the hearing. Jacobs' petition for review was granted.

ISSUE: (1) Necessity of personal appearance at the hearing

HELD: K.S.A. 2018 Supp. 20-1204a does not specifically mention whether an accused must appear at the hearing. But after reading all of the statute's provisions together, it is clear that a district court judge is allowed to proceed with a contempt hearing once the person accused is present, but not before.

STATUTE: K.S.A. 2018 Supp. 20-1204a

criminal 

criminal law—criminal procedure—jury instructions—motions—statutes
state v. cottrell
sedgwick district court—affirmed
court of appeals—affirmed
no. 114,635 —july 19, 2019

FACTS: Undercover officer (Padron) obtained hydrocodone and oxycodone from Cottrell, through sale set up by his daughter. Jury convicted Cottrell of distributing a controlled substance and conspiring to distribute a controlled substance. On appeal, Cottrell claimed: (1) district court erred in failing to give a unanimity instruction because State alleged multiple overt acts in furtherance of the conspiracy; (2) alternatively, the overt acts alleged were alternative means to commit the crime of conspiracy, and State failed to produce sufficient evidence to support each one; (3) district court erred in instructing jury that “knowingly” was the culpable mental state for distribution of a controlled substance; and (4) district court erred in denying Cottrell’s motion for judgment of acquittal because insufficient evidence supported the charges. Court of appeals affirmed. 53 Kan. App. 2d 425 (2017). Review granted.

ISSUES: (1) Unanimity instruction—multiple acts; (2) alternative means—crime of conspiracy; (3) jury instruction; (4) motion for acquittal

HELD: No unanimity instruction was required because alleging several overt acts in furtherance of one conspiracy does not present a multiple acts case. State presented arguments and evidence about one agreement between Cottrell and his daughter: to illegally sell hydrocodone and oxycodone to Padron.

Jury instruction that lists several overt acts in furtherance of a conspiracy does not create alternative means for the crime of conspiracy.

Following State v. Brown, 295 Kan. 181 (2012), only language of a statute can create alternative means for a crime, and the conspiracy statute does not do so. State v. Enriquez, 46 Kan. App. 2d 765 (2011), is overruled. A jury instruction listing more than one overt act in furtherance of a conspiracy does not create alternative means. Instead, such an instruction merely describes the factual scenarios that could prove the material element of an overt act.

Invited error precludes reaching the merits of Cottrell’s jury instruction challenge. Cottrell actively pursued an instruction for distribution of a controlled substance that included a knowing culpable mental state, was unwavering in this request, and any error was as obvious before trial as after. Defense counsel also stated on the record that he did not object to the final instruction.

No error in district court’s denial of the motion for acquittal. No appellate reweighing of Cottrell’s testimony, and significant evidence supported Cottrell’s knowledge that he was distributing controlled substances

STATUTES: K.S.A. 2018 Supp. 21-5302(a), -5402(c); K.S.A. 2912 Supp. 21-5302(a)

constitutional law—criminal law—jurisdiction
motions—securities—statutes
state v. lundberg
sedgwick district court—affirmed
court of appeals—reversed
no. 114,897—july 19, 2019

FACTS: Minnesota residents Lundberg and Elzufon, formed a Minnesota corporation they registered to do business in Kansas to develop properties in downtown Wichita. As principals for four Kansas limited liability corporations (LLCs), they sold securities by using intermediaries who resided in California who made sales presentations in California and sold the securities from California to individuals who did not reside in Kansas.  State filed criminal charges under the Kansas Uniform Securities Act (KUSA) against Lundberg and Elzufon for selling or offering to sell unregistered securities and committing fraud in selling or offering to sell securities. Lundberg and Elzufon filed motions to dismiss for lack of jurisdiction, arguing neither the offers to sell, the sales, the offers to purchase, nor the purchases were made or accepted in Kansas. Parties stipulated to the facts for deciding this motion. District court dismissed 56 of the counts related to sales involving the California intermediaries, rejecting State’s argument that any of the offers originated within Kansas. State voluntarily dismissed remaining charges and appealed. Court of Appeals reversed. 53 Kan.App.2d 721 (2017). Lundberg’s and Elzufon’s petitions for review granted.

ISSUE: (1) Jurisdiction for criminal charges - KUSA

HELD: KUSA is interpreted, examining “sale,” “offer to sell,” and whether “multiple sales” were consummated in Kansas. Nexus analysis applied by Court of Appeals is rejected. Even under expansive reading permitted by definition of “offer to sell” in KUSA, Kansas’ jurisdiction is statutorily limited to situations in which the offer originates within the territorial boundaries of Kansas—not just because the transaction has some sort of “nexus” to the state. On facts in this case the sales were not made in Kansas nor did the offers to sell originate in Kansas, thus no jurisdiction exists based on a sale occurring in Kansas.  

CONCURRENCE (Vano, D.Judge assigned): There is no stipulated fact regarding the place where any offer to sell originated, and the word “nexus” appears nowhere in the KUSA. The jurisdictional statute, K.S.A. 17-12a610, limits criminal sanction to sales or offers to sell originating within the state. On the stipulated facts in this case, the offers did not occur or originate in Kansas.  Dissent goes too far in adding a penal reach that is not expressed by the Legislature and is inconsistent with Kansas precedent on reading, construing, and applying criminal statutes and sanctions strictly in favor of the accused, and keeping the court out of the business of drafting legislation—particularly penal sanctions.

DISSENT (Luckert, J.) (joined by Beier and Rosen, JJ.): Would interpret the offers as originating with and the sales being made by the Kansas LLCs acting through their officers and shareholders—Lundberg and Elzufon—to retain California intermediaries who extended the Kansas LLCs’ offers to California investors. These acts are sufficient to say the sales or offers to sell originated in Kansas. Thus application of Kansas law and jurisdiction is proper, and applying KUSA here does not violate any federal constitutional restriction against extraterritorial application of Kansas law.   

STATUTES: K.S.A. 2019 Supp. 17-12a302, -12a303, -12a508(a)(2), -12a508(a)(3), -7662 et seq., -7663(1), -7668, 21-5106; K.S.A.17-12a101 et seq., -12a102, -12a102(17), -12a102(26), -12a310, -12a304, -12a501, -12a501(2), -12a501(3), -12a508, -12a610, -12a610(a), -12a610(b), -12a610(c), -12a610(e), 60-2101(b)

appellate procedurecriminal lawstatutes
state v. Rizal
johnson district court—affirmed; court of appeals—affirmed
no. 115,036 —july 19, 2019

FACTS: In bench trial on stipulated facts, Rizal convicted of possessing a controlled substance —naphthoylindole (“K2”), a synthetic cannabinoid — with intent to distribute it at gas station she owned. Rizal appealed, claiming in part that insufficient evidence supported the conviction because State only proved she knowingly sold what she thought was “incense,” and not that  she possessed K2 with “knowledge” as defined in McFadden v. United States, 576 U.S. __ (2015). Court of Appeals affirmed in unpublished opinion, distinguishing McFadden from the Kansas statute, but also finding substantial competent evidence if McFadden applied. Review granted. In supplemental brief Rizal argued new claim that that the substance she possessed was not a controlled substance, but a controlled substance analog, based on her lay analysis of chemical compounds in packets sold.

ISSUES: (1) New claim on appeal; (2) knowledge of nature of the controlled substance; (3) sufficiency of the evidence

HELD: Rizal’s new analog argument is unpreserved and not reviewed. Undisputed fact in the record that Rizal possessed the controlled substance naphthoylindole.

Court examines what it means to “knowingly” exercise control over a controlled substance, finding Court of Appeals erred in its interpretation of K.S.A. 2011 Supp. 21-5705(a)’s knowledge requirement. To convict a defendant of possession with intent to distribute a controlled substance under K.S.A. 2011 Supp. 21-5705(a), State must prove the defendant had knowledge of the nature of the controlled substance. This knowledge requirement can be established by proving the defendant either knew the identity of the substance or knew that the substance was controlled. A mistake of fact about the nature of a controlled substance can negate the knowledge requirement.

Under facts in this case, Rizal’s conviction is affirmed because State presented sufficient evidence that Rizal knew the substance was controlled.

STATUTES: K.S.A. 2018 Supp. 21-5207(a); K.S.A. 2014 Supp. 60-455(b); K.S.A. 2011 Supp. 21-5202(i), -5701(a), -5701(q), -5705(a), -5705(a)(7), -5705(c)(1)(A), 65-4101(bb)(1), -4101(bb)(2), -4105(h)(2); K.S.A. 60-455

appellate procedure—criminal procedure
evidence—jury instructions—prosecutors
state v. ross
sedgwick district court—affirmed
no. 117,850—july 19, 2019

FACTS: Ross convicted of felony murder and second-degree murder as a lesser included offense of premeditated murder, and felony abuse of a child. On appeal he claimed: (1) State committed prosecutorial error during rebuttal closing argument by stating the jury must find the defendant guilty if it did not believe the defendant’s testimony; (2) district court violated Ross’ statutory right to lesser included offense instructions by not offering an instruction on unintentional but reckless second-degree murder as a lesser included offense of premeditated murder; (3) district court erred in admitting into evidence two recorded jail phone calls between Ross and his mother; (4) pro se additional issues claiming the jury’s verdict operated as a de facto acquittal on the charge of first-degree felony murder, and claiming K.S.A. 2018 Supp. 21-5109(b)(1) infringed his right to present a complete defense; and (5) cumulative error denied him a fair trial.

ISSUES: (1) Prosecutorial error; (2) jury instruction; (3) admission of phone call evidence; (4) supplemental issues raised pro se; (5) cumulative error

HELD: Prosecutor’s misstatement was error, but in context of prosecutor’s surrounding comments did not effectively shift burden of proof. No reversible error shown.

An instruction on reckless second-degree murder was legally appropriate, but whether it was factually appropriate is immaterial because any error in failing to offer the instruction was harmless. On evidence in the case, no reasonable probability that jury could have inferred the killing of the child victim was done unintentionally but recklessly.

No error in admitting the two phone calls. Probative value of the calls far outweighed the resulting prejudice.

Ross’ newly raised arguments were insufficiently preserved for appellate review.

Aggregated effect of prosecutor’s misstatement which did not prejudice Ross’ right to a fair trial, and assumed instructional error which was harmless, did not constitute reversible error.             

STATUTES: K.S.A. 2018 Supp. 21-5108, -5109(b)(1), -5403(a)(2); K.

 

Kansas Court of Appeals

CIVIL

DUE PROCESS—PARENTAL RIGHTS
IN RE J.L.
SHAWNEE DISTRICT COURT—REVERSED AND REMANDED
NO. 120,504—JULY 19, 2019

FACTS: In April 2018 the State sought to have J.L. declared to be a child in need of care. Later that year, the State scheduled a pretrial conference hearing. Notice was mailed, but Father's address was listed as "unknown." Father's attorney appeared at that pretrial conference hearing, but Father was not in the room when the hearing started. Because of his absence, the State moved for a default judgment on the CINC petition. Father appeared within 10 minutes of the start of the hearing and moved to set aside the default judgment. Father appealed.

ISSUE: (1) Due process violation

HELD: Father has a fundamental liberty interest in parenting his child. Finding J.L. to be a CINC opens Father up to further intervention and potential liberty deprivations. To protect against undue deprivations, the State is required to prove the need for adjudication by clear and convincing evidence. It is uncertain that any portion of the default judgment statute can apply to proceedings held under the juvenile code. Further, Father was never told that a CINC adjudication would occur at the pretrial conference hearing. Even the State did not anticipate the finding and there were no witnesses available. Nothing about the default judgment advanced the State's interests or J.L.'s wellbeing; this was about the district court's annoyance. The default judgment is reversed and the case is remanded for further proceedings.

STATUTE: K.S.A. 2018 Supp. 38-2239, -2248(e), -2250, -2251(a), 60-255, -255(a)

GRIEVANCE—HABEAS CORPUS
PETERSON V. SCHNURR
RENO DISTRICT COURT—AFFIRMED
NO. 119,869—JULY 19, 2019

FACTS: Peterson is an inmate who subscribed to a newspaper. The correctional facility seized two issues of the paper, claiming that they had content which was a threat to the facility's safety. Peterson appealed the seizure and the decision was upheld by the Secretary of Corrections' designee. Peterson then filed an inmate grievance claiming he was subject to improper censorship. That grievance was denied. Peterson followed up by filing a K.S.A. 60-1501 petition, arguing that the Department of Corrections was not properly applying its own regulations regarding censorship. The district court denied the petition as untimely, and Peterson appealed.

ISSUE: (1) Timeliness of petition

HELD: Peterson's use of the facility grievance procedure was not part of his administrative remedies and did not toll the time in which to file his 60-1501 petition. Because the time limit was not tolled, the district court properly dismissed Peterson's petition as untimely.

STATUTES: K.S.A. 2017 Supp. 60-1501, -1501(b); K.S.A. 75-52,138

Tags:  8807  Johnson District  Reno District  Sedgwick District  Shawnee District 

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July 12, 2019 Digests

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

Kansas Supreme Court

CIVIL

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

STATUTES: K.S.A. 60-1507

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

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

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

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

STATUTES: K.S.A. 60-1507

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

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

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

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

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

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

NO. 115,662 —July 12, 2019

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

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

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

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

criminal

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ISSUE: (1) Motion to correct illegal sentence

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

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

Kansas Court of Appeals

CIVIL

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

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

ISSUE: (1) Adequacy of service

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

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

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

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

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

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

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

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

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July 5, 2019 Digest

Posted By Administration, Monday, July 8, 2019

Kansas Court of Appeals

criminal

constitutional law—criminal law—fourth amendment—
probation—sentences—statutes
state v. hinnenkamp
sedgwick district court—affirmed
No. 119,125—july 5, 2019

FACTS: District court ordered Hinnenkamp to submit to random drug and alcohol testing as a condition of probation for her aggravated escape from custody conviction. Hinnenkamp appealed, arguing K.S.A. 2018 Supp. 21-6607(c)(6), which requires district courts to impose random drug and alcohol testing as a condition of probation, violates her federal and state constitutional right against unlawful search and seizure. State responds on merits of this argument, and also claims this issue is improperly raised for first time on appeal, jurisdiction is lacking because the issue is not ripe for consideration, and Hinnenkamp waived the issue by inadequate briefing.

ISSUES: (1) Threshold issues—preservation, ripeness, waiver; (2) constitutionality of K.S.A. 2018 Supp. 21-6607(c)(6)

HELD: Hinnenkamp is asserting her constitutional claim for first time on appeal, but her facial challenge to the constitutionality of the statute is considered. Her facial challenge to the statute is ripe for appeal, and she has not waived or abandoned her constitutional claim based on inadequate briefing.

K.S.A. 2018 Supp. 21-6607(c)(6), which subjects probationers to suspicionless drug and alcohol testing, does not, on its face, violate the Fourth Amendment of U.S. Constitution or §15 of Kansas Bill of Rights. This mandatory statutory condition of probation is exempt from Fourth Amendment’s general warrant requirement because (1) special needs of the probation system make the warrant and probable cause requirement impracticable, and (2) the primary purpose of random drug and alcohol testing for probationers is distinguishable from State’s general interest in crime control. Weighing a probationer’s diminished expectation of privacy against State’s interest in promoting rehabilitation and probation compliance, and considering the efficacy of random suspicionless drug and alcohol testing, it is reasonable to permit a court services officer or community correctional services officer to order a probationer to submit to random drug and alcohol testing, even without any suspicion of wrongdoing. Two recent unpublished Court of Appeals opinions upholding the constitutionality of K.S.A. 2018 Supp. 21-6607(c)(6) in similar cases are cited and reviewed.

STATUTES: K.S.A. 2018 Supp. 21-6607(c)(5), -6607(c)(6), 22-3717(k)(2); K.S.A. 2014 Supp. 8-1025

Tags:  8807  Constitutional Law  Fourth Amendment  Probation  Sedgwick District 

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June 28, 2019 Digests

Posted By Administration, Monday, July 1, 2019

Kansas Supreme Court

ATTORNEY DISCIPLINE

ORDER OF SUSPENSION
IN RE GREGORY V. BLUME
NO. 119,027
JUNE 28, 2019

FACTS: A hearing panel determined that Blume violated KRPC 3.1 (meritorious claims and contentions); 3.3(a)(1) (candor toward tribunal); 3.4(d) (compliance with discovery request); 4.4(a) (respect for rights of third persons); 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation); and 8.4(d) (conduct prejudicial to the administration of justice). One incident involved an allegedly inadequate response to a discovery request, two involved rude words and gestures directed at a deposition witness, and one arose out of a motion to set aside an earlier agreed judgment. Blume's actions regarding discovery resulted in the dismissal of his client's case, after the district court found that Blume's conduct was calculated and intentional.

HEARING PANEL: The hearing panel found adequate evidence to support all of the complaints levied against Blume. When considering aggravating factors, the panel noted that Blume's conduct was motivated by dishonesty and was part of a pattern of failing to show respect for other people. The disciplinary administrator recommended a one-year suspension. Blume asked for a one-year suspension but asked that it be suspended while he served a probationary term. However, the panel found that Blume's probation plan was wholly inadequate and that his misconduct could not be corrected by probation. The hearing panel agreed with the disciplinary administrator and recommended discipline of a one-year suspension.

HELD: Blume filed numerous exceptions to the hearing panel's report. Most of the exceptions were not supported by evidence that was considered by the hearing panel. At the hearing before the court, Blume explained that he planned to retire within six months. He asked that discipline be limited to a requirement that he apologize to the deposition witness. The court found Blume's objections to the findings of fact incoherent and inconsistent, and all of the hearing panel's findings of fact and conclusions of law were adopted. The court found that Blume failed to understand the nature of his mistakes and did not acknowledge the seriousness of his misconduct. Because of the serious nature of his misconduct and his failure to take responsibility, the court determined that a severe sanction was warranted. It imposed an indefinite suspension from the practice of law.

CIVIL

CITY ORDINANCEHOME RULE
DWAGFYS MANUFACTURING, INC. V. CITY OF TOPEKA
SHAWNEE DISTRICT COURT
REVERSED
NO. 119,269
JUNE 28, 2019

FACTS: The City of Topeka passed Ordinance 20099, which made it unlawful to sell cigarettes to persons under age 21, and persons under age 21 were forbidden to buy tobacco. Prior to the ordinance taking effect, a store sued the City of Topeka seeking to prevent enforcement of the ordinance as unconstitutional under the Kansas Constitution. The district court agreed, finding conflicts between the ordinance and state law. The district court both temporarily and permanently enjoined enforcement of the ordinance. The City appealed, and the case was transferred to the Supreme Court.

ISSUE: (1) Statutory preemption

HELD: There is overlap between the ordinance and state statute regarding the subject matter, and the state statute is a uniform law applicable to all cities. But the Kansas Cigarette and Tobacco Products Act does not contain an express statement of preemption, and the act's "comprehensive scheme" of regulation is inadequate to show an intent to preempt city action. There is also no conflict between the language of the act and the ordinance. The act does not expressly authorize the sale or purchase of tobacco products to those ages 18-20. The ordinance is a constitutional exercise of the city's home rule power, and the district court is reversed.

STATUTE: Kansas Constitution, Article 12, §5(b), §5(d)

criminal 

attorney and client—criminal procedure—motions
state v. bacon
sedgwick district court—affirmed; court of appeals—affirmed
no. 114,951—june 28, 2019

FACTS: Bacon was charged with aggravated human trafficking. After appointed public defender continued the preliminary hearing seven times, Bacon filed pro se “Motion for Diligence” with copy of KRPC 1.3. No action taken on this and subsequent similar motions. Appointed counsel continued the preliminary hearing three more times, and continued trial three times. Bacon then retained private counsel. State amended the complaint and jury found Bacon guilty of commercial sexual exploitation of a child. Motion for new trial filed, based in part on district court’s failure to inquire into Bacon’s pro se motions voicing dissatisfaction with appointed counsel. Bacon appealed the district court’s denial of that motion. Court of appeals affirmed the conviction, finding in part the pro se motions did not allege dissatisfaction with appointed counsel. Review granted on this issue.

ISSUE: District court’s duty to Inquire 

HELD: It is assumed without deciding that Bacon’s pro se motions were sufficient to trigger the district court’s duty to inquire into a potential conflict with his trial attorney, but on facts in case, remand to district court is unnecessary because Bacon retained a new attorney for trial; he does not claim his trial attorney was ineffective; and he does not otherwise identify any prejudice flowing from district court’s failure to inquire.

STATUTE: K.S.A. 2014 Supp. 21-5426(b)(4), -6422(a)(4)

criminal procedure—motions—sentences—statuites
state v. dubry
shawnee district court—affirmed
court of appeals—affirmed
no. 114,050—june 28, 2019

FACTS: Dubry was convicted of kidnapping. Years later he moved to correct his 2011 sentence, arguing the sentencing court improperly scored a prior Wyoming conviction as a person crime. District court denied the motion. Dubry appealed, arguing the Wyoming statute is broader than the counterpart Kansas offense. Court of appeals affirmed in unpublished opinion. Dubry’s petition for review granted, and parties were ordered to explain whether panel’s decision should be summarily vacated and case remanded to district court in light of State v. Wetrich, 307 Kan. 552 (2018). Dubry argues Wetrich should apply.

ISSUE: Classification of out-of-state crime

HELD: Affirmed based on State v. Murdock, 309 Kan. 585 (2019)(Murdock II). Legality of a sentence under K.S.A. 2018 Supp. 22-3504 is controlled by the law in effect at the time the sentence was pronounced. Thus a sentence that was legal when pronounced does not become illegal if the law subsequently changes. Since Wetrich announced a change in the law and Dubry was sentenced before Wetrich was decided, application of Wetrich to Dubry’s motion to correct his sentence is barred by Murdock II.

STATUTES: K.S.A. 2018 Supp. 22-3504; K.S.A. 20-3018(b), 21-3503, -4701 et seq., -4711, 60-2101

CONSTITUTIONAL LAW—EVIDENCE—FIFTH AMENDMENT
FOURTH AMENDMENT—MOTIONS
STATE V. GUEIN
JOHNSON DISTRICT COURT—REVERSED AND REMANDED
COURT OF APPEALS—AFFIRMED IN PART AND REVERSED IN PART
NO. 115,426—JUNE 28, 2019

FACTS: Police observed a suspected drug deal involving car parked in a closed Burger King lot. Officers approached the car, patted down occupants and retrieved a bag of marijuana Guein admitted was in his underwear. After arrest, Guein admitted to additional marijuana in the car. Search of the car disclosed handgun, loose marijuana, and drug paraphernalia. Guein filed a motion to suppress his statements and the evidence obtained as a result of search of his person and his car. District court: refused to suppress Guein’s statement of having marijuana in his underwear because Guein was not in custody until handcuffed; suppressed Guein’s statement of additional drugs in car, made after handcuffed and before Miranda warning; admitted post-Miranda statements, finding Guein had voluntarily waived his rights; and denied suppression of the physical evidence. Guein was convicted of felony distribution of marijuana and misdemeanor possession of paraphernalia. A divided court of appeals reversed in part and affirmed in part the district court’s decision on the motion to suppress and remanded to district court. State v. Guein, 53 Kan. App.2d 394 (2017). Entire panel upheld the admission of Guein’s statement about marijuana in underwear and the marijuana found there, finding Miranda  warnings were not necessary. Majority concluded officer’s statements to Guein were sufficiently threatening to negate the Miranda warning, and State’s failure to provide the trial transcript prevented a harmless error analysis. Conviction was set aside and a new trial ordered. Guein and State both petitioned for review.

ISSUES: (1) Admission of pre-Miranda statement; (2) admission of post-Miranda statement

HELD: Factors cited in State v. Lewis, 299 Kan. 828 (2014), are examined on facts in case, finding officer’s pre-Miranda interrogation was custodial rather than investigative. District court’s denial of motion to suppress pre-Miranda statement about marijuana in underwear is reversed.

     Under facts in case, officer’s aggressive and profane language implied physical violence toward Guein, prompting Guein’s later incriminating statement. Panel’s majority on this issue is affirmed. Remanded to district court for further proceedings.

CONCURRENCE AND DISSENT (Stegall, J.)(joined by Biles, J.): Disagrees with majority’s order to suppress Guein’s pre-Miranda statements, and would support panel’s assessment that this was an ordinary investigatory detention not requiring Miranda warnings. Agrees that Guein’s post-Miranda statements were not voluntary and must be suppressed, but does not find officer’s use of profanity as significant as the majority does. Guein was coerced because of a real and actionable threat. Law enforcement’s use of the word “fuck” does not make the circumstances more or less coercive, and majority’s reasoning suggests a politely worded threat is less coercive than a vulgar one.  

STATUTUES: K.S.A. 2018 Supp. 60-460(f); K.S.A. 20-3018(b), 22-2402(1), -3215(4), -3216(2), 60-2101(b)

constitutional law—criminal law—criminal procedure—evidence
jury instructions—prosecutors—statutes`
state v. james
sedgwick district court—affirmed
no. 117,945—june 28, 2019

FACTS: James was convicted of first-degree premeditated murder and criminal possession of a firearm. On appeal, he claimed district court erred by: refusing defense requests for instructions on lesser included offenses of reckless second-degree murder and reckless involuntary manslaughter; refusing to instruct jury on imperfect self-defense involuntary manslaughter; failing to instruct jury to consider verdicts of premeditated murder and imperfect self-defense voluntary manslaughter simultaneously;  and admitting gruesome autopsy photos. He also claimed prosecutorial error during closing argument, claimed he was deprived his constitutional right to be present at all critical stages of the trial—namely requests for continuances, and argued cumulative error required reversal.

ISSUES: (1) Jury instructions on reckless based homicides; (2) jury instruction on imperfect self-defense of involuntary manslaughter; (3) jury instruction on simultaneous consideration of lesser included crimes; (4) admission of autopsy photos; (5) prosecutorial error; (6) constitutional right to presence; (7) cumulative error

HELD: Challenge to district court’s refusal to instruct on lesser included reckless homicides was properly preserved, and the requested instructions were both legally and factually appropriate under facts in case. District judge’s refusal to instruct jury on reckless second-degree murder and reckless involuntary manslaughter was error, but not reversible error under the statutory harmless error standard.

     Likewise, James preserved his challenge to district court’s refusal to instruct on imperfect self-defense of involuntary manslaughter. This instruction was legally appropriate, and under facts in case, also factually appropriate. Applying statutory harmlessness test, district judge’s failure to give the requested instruction was not reversible error.

     Under controlling precedent in State v. Sims, 308 Kan. 1488 (2018), pet. for cert. filed April 29, 2019, a district court is not required to instruct a jury to consider a lesser included homicide offense simultaneously with any greater homicide offense.

      No abuse of district judge’s discretion by admitting autopsy photos which were not repetitious and which allowed pathologist to explain path of bullet that killed the victim and show skull fractures that resulted.

     Prosecutor erred by stating James left the scene in a stolen car because no evidence supported a description of the car as “stolen.” Also, referencing an uncharged crime is problematic because it encourages jurors to draw inference of a defendant’s propensity to commit crimes. In light of entire record, however, this error does not require reversal.

     Because record contains no evidence that James knowingly and voluntarily waived his right to be present when first attorney requested two continuances, error is assumed. Under constitutional standard the error was harmless under facts in this case. State v. Wright, 305 Kan. 1176 (2017), is distinguished.   

     The combination of instructional errors, prosecutorial error, and assumed violation of James’ right to be present at all critical stages did not deprive James of a fair trial.

STATUTES: K.S.A. 2018 Supp. 21-5202(j), -5202(h), -5226, -5402(a)(1), -5403(a)(1), -5403(a)(2), -5801, -5803, 60-455(a); K.S.A. 2015 Supp. 21-5405(a)(4); K.S.A. 22-3402

constitutional law—criminal procedure
evidence—sentencing—statutes
state v. obregon
geary district court—reversed, sentences vacated and remanded
court of appeals—affirmed in part and reversed in part
NO. 117,422—june 28, 2019

FACTS: Obregon entered no contest pleas to possession of drugs with intent to distribute.  District court accepted the pleas, and in sentencing, applied the statutory firearm enhancement. Obregon appealed, challenging whether district court should have classified a prior Florida battery conviction as a person felony without knowing which version of the Florida crime he committed. He also claimed his no contest pleas to the base drug offenses did not include any facts upon which the enhancement could be grounded. Court of appeals concluded the district court properly calculated Obregon’s criminal history score, but held Obregon’s waiver of his right to jury trial on the firearm enhancement was invalid. Panel vacated the enhancement and remanded case to district court for proper waiver or for jury to make factual findings required by K.S.A. 2015 Supp. 21-6805(g)(1) regarding the firearm. Obregon’s petition for review granted.

ISSUES: (1) Florida battery conviction; (2) firearm enhancement

HELD: Pursuant to State v. Murdock, 309 Kan. 585 (2019)(Murdock II), Obregon is entitled to application of State v. Wetrich, 307 Kan. 552 (2018), but variation to the Wetrich analysis is presented because the Kansas and out-of-state offenses are both what Kansas law refers to as “alternative means crimes.” When the crime in question is an out-of-state offense with alternative means—some of which would not be comparable to Kansas person crimes—the State bears the burden of establishing the defendant committed a version of the offense supporting the person classification. On record in this case, district court’s finding that Obregon committed a Florida offense with a comparable Kansas person crime is not supported by substantial competent evidence. Because the Florida offense on its face is broader than the Kansas comparator, it should not have been classified as a person offense under Wetrich. Sentence is vacated and case is remanded for district court to reconsider the Florida conviction’s person-crime classification.

     Panel erred by remanding his case for a jury to determine if firearm enhancement should apply. As a general rule, special questions may not be submitted to a jury for answer in a criminal prosecution, and the legislature has not created a statutory exception to the general rule against special verdicts for a firearm enhancement to be determined separately after the verdict. Obregon’s resentencing is to proceed without the firearm enhancement.

CONCURRENCE AND DISSENT (Johnson, J.): Agrees the district court must resentence Obregon without the enhancement. Also agrees the State failed to present sufficient evidence to support classification of the Florida battery conviction as a person felony, but that insufficiency of the evidence should result in vacating the sentence and remanding for resentencing of criminal history score with the Florida conviction classified as nonperson.        

STATUTES: K.S.A. 2018 Supp. 21-5413(a), -5413(a)(1), -5413(a)(2), -5413(g), -6801 et seq., -6805(g)(1), -6805(g)(2), -6809, -6814, -6814(b), -6814(c); K.S.A. 2015 Supp. 21-6805(g)(1), -6811(e); K.S.A. 2013 Supp. 21-6817(b)(2); K.S.A. 20-3018(b), 21-3715, -3715(a), 60-2101(b)

criminal procedure—mootness—motions—sentencing—statutes
state v. russ
sedgwick district court—affirmed;
court of appeals—affirmed
no. 115,111—june 28, 2019

FACTS: Russ was found guilty of attempted second-degree murder. His prior convictions included six Wichita municipal violations classified as person misdemeanors, five of which were eligible for conversion to a felony. Russ appealed sentencing court’s classification of prior municipal ordinance convictions as person offenses to calculate Russ’ criminal history score, arguing in part the domestic battery municipal ordinances were broader than the counterpart Kansas domestic battery statute. Court of appeals affirmed in unpublished opinion. Russ petitioned for review claiming the panel erred by: (1) looking beyond the most comparable Kansas offense of domestic battery to analyze his municipal ordinance domestic battery convictions, and (2) declining to address as moot an issue concerning his prior conviction of failure to comply with bond restrictions.

ISSUES: (1) Classifying the domestic battery municipal ordinance violations; (2) mootness

HELD: Applying State v. Wetrich, 307 Kan. 552 (2018), the panel correctly held Russ’ domestic battery ordinance violations were person offenses. Only difference between the ordinances and the Kansas domestic battery statue is the specific requirement of the relationship between the batterer and the battered, which makes the scope of the ordinance’s proscribed acts narrower, not broader.  

     Panel correctly declined to address the classification of Russ’ prior conviction for failure to comply with bond restrictions. Regardless of classification of this prior conviction, Russ’ criminal history score is unchanged since three prior domestic battery municipal ordinance violations were properly scored as person misdemeanors.

STATUTES: K.S.A. 2018 Supp. 21-5413(a), -5413(g)(1), -6801 et seq., -6810(a), -5811(a); K.S.A. 2017 Supp. 21-6811(e)(3); K.S.A. 2016 Supp. 21-6804(a), -6809, -6811(a); K.S.A. 2014 Supp. 21-5414(a); K.S.A. 20-3018(a), 60-2101(b)

 

Kansas Court of Appeals

CIVIL

DISCOVERY
FLAHERTY V. CNH INDUSTRIAL AMERICA
SALINE DISTRICT COURT – AFFIRMED
NO. 119,704 – JUNE 28, 2019

FACTS: Flaherty purchased a sprayer manufactured by CNH in early 2014. Later that year, Flaherty took it back to the dealer for maintenance and a hose adjustment. The dealer knew that there were also potential issues with one of the drive hoses at the engine starter. While the sprayer was at the dealer, it caught on fire and was completely destroyed. During the investigation, a fire investigator with the fire department accompanied law enforcement on the scene. It was his opinion that the fire was caused by an electrical issue. Neither of Flaherty's experts could definitively determine the fire's cause. Robert Hawken, a product safety specialist at CNH, investigated the sprayer in anticipation of litigation. Flaherty sued both CNH and the dealer. During discovery, Flaherty provided notice of his intent to depose Hawken. CNH filed a motion to quash and asked the court to quash the subpoena. The district court granted that motion and Hawken was not deposed. After hearing more evidence, the district court granted CNH's motion for summary judgment on all claims and Flaherty appealed.

ISSUES: (1) Denial of discovery request; (2) express warranty claims; (3) implied warranty claims

HELD: Hawken examined the sprayer over a month after the fire, and he only gave his findings to CNH's legal department and outside counsel. The dealer told Flaherty that Hawken believed the fire started in the sprayer's starter area. Hawken's opinions were protected by work-product privilege as far as the subpoena duces tecum was concerned. Hawken was also protected by non-testifying expert privilege as an in-house expert. Flaherty failed to prove that Hawken waived his privilege, and much of the privilege belonged to CNH, and Hawken has no power to waive it on the company's behalf. The warranty agreement between Flaherty and CNH disclaimed any express warranty created by descriptions of the sprayer on its website or by statements made by salespeople. And Flaherty failed to identify any specific descriptions of the sprayer on which he relied. In addition, the warranty agreement required Flaherty to prove that the sprayer had a defect in material or workmanship, which he failed to do. Any implied warranty claim had a similar requirement that Flaherty prove the existence of a defect. In addition, Flaherty failed to prove that the sprayer was defective when it left CNH's control.

STATUTES: K.S.A. 2018 Supp. 60-226(b)(4)(A), -226(b)(5), -226(b)(5)(D), -233(b)(1)(B), -256(c)(2), -456; K.S.A. 60-437, 84-2-313(1)(b), -313(2), -314(1), -314(2)(c)

 

Tags:  8807  Attorney Discipline  Geary District  Johnson District  Saline District  Sedgwick District  Shawnee District  Weekly20190702 

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June 21, 2019 Digests

Posted By Administration, Monday, June 24, 2019

Kansas Supreme Court

Criminal

CONSECUTIVE SENTENCES
STATE V. DARRAH
MCPHERSON DISTRICT COURT - AFFIRMED
NO. 117,461—JUNE 21, 2019

FACTS: Darrah and two co-conspirators were implicated in the kidnapping and murder of an associate. He pled no contest and the parties made a sentencing recommendation. Before sentencing, Darrah asked the district court to impose concurrent rather than consecutive sentences, claiming that his culpability was less than his coconspirators' and that concurrent sentencing would make his sentence commensurate with his level of involvement in the crime. At sentencing, the State requested both the aggravated number for the kidnapping charge and that the sentence run consecutive to the murder sentence. Darrah asked for mitigated numbers with concurrent sentencing. The district court imposed a hard 25 for the murder charge and the aggravated sentence for kidnapping, to run consecutive to the murder sentence. Darrah appealed.

ISSUE: (1) Abuse of discretion with sentencing

HELD: The facts presented at trial show that Darrah was central to the conspiracy and acted as a leader in committing the crimes. A reasonable person could have concluded that the sentence imposed was proportionate to the harm and culpability associated with Darrah's actions. For these reasons, the sentence imposed by the district court was not an abuse of discretion.

STATUTE: K.S.A. 2018 Supp. 21-6815(c)(2)(H), -6819(b)

 

Kansas Court of Appeals

Civil

INTERMEDIATE SANCTIONS
STATE V. DURAN
SEDGWICK DISTRICT COURT—REVERSED AND REMANDED
NO. 119,303 AND 119,304—JUNE 21, 2019

FACTS: Guadalupe Duran was sentenced to probation in two cases. For each case, there was a lengthy underlying sentence. Duran stipulated to violating his probation. Both Court Services and the State asked the district court to impose Duran's underlying sentence. Instead of imposing a graduated, intermediate sanction the district court found that "public safety" would be negatively impacted by reinstatement, and it ordered Duran to serve his underlying sentences. Duran appealed.

ISSUE: (1) Failure to impose intermediate sanctions

HELD: A district court is given statutory authority to bypass intermediate sanctions only in limited circumstances. In order to make that bypass, the district court must establish with particularity the reasons for finding that public safety will be negatively affected or that the offender's welfare will not be served by the intermediate sanction. Those particularized findings must be more than a general finding that the offender is not amenable to probation. Here, the district court's findings were based on speculation and generalized predictions without connection to the particular facts of Duran's case. The district court abused its discretion by revoking probation without setting forth with particularity reasons which justified the refusal to impose an intermediate sanction.

STATUTE: K.S.A. 2018 Supp. 22-3716(c)(1), -3716(c)(9)(A)

 

RACE-BASED POLICING
STATE V. GILL
RENO DISTRICT COURT—AFFIRMED
NO. 119,986—JUNE 21, 2019

FACTS: Law enforcement went to an apartment complex to investigate a reported theft. There was no suspect description and the officer was not looking for anyone in particular. The officer spotted Gill and a passenger in an SUV; both men were African-American. When Gill attempted to leave, the officer told him that he was not free to go. Despite no evidence of wrongdoing, the officer asked for Gill's driver's license and proof of insurance. Eventually, officers searched Gill's vehicle and discovered evidence of drug activity. After he was charged, Gill moved to suppress the evidence from his vehicle, alleging that the officer unreasonably used race-based policing when initiating the encounter with Gill. The district court agreed and suppressed the evidence. The State appealed.

ISSUE: (1) Admissibility of evidence in light of race-based policing

HELD: This case does not involve normal Fourth Amendment inquiries; exclusion was granted because the district court found that law enforcement violated K.S.A. 2018 Supp. 22-4609. The district court correctly determined that approaching two African-American men because they are "staring hard at you" unreasonably used race when deciding to initiate an enforcement action. The contact between the officer and Gill was completely unrelated to the initial theft report. And the district court's finding that the officer could not have determined whether a marijuana smell was coming from Gill's vehicle is an unreviewable credibility determination. The district court correctly concluded that the officer unreasonably used race to initiate an enforcement action and, as a result, suppressed evidence found in Gill's vehicle.

DISSENT: (Powell, J.) Body camera video showed no evidence of racial animus. Absent that, the district court erred by suppressing the evidence.

STATUTES: K.S.A. 2018 Supp. 22-4604(d), -4606(d), -4609; K.S.A. 22-3216(1)

 

DUE PROCESS—PARENTAL RIGHTS
IN RE M.S.
SHAWNEE DISTRICT COURT—AFFIRMED
NO. 119,797—JUNE 21, 2019

FACTS: The State filed a child in need of care petition alleging that Mother's children were not being properly cared for in her home. The children were removed from her home and placed in DCF custody. Ultimately, the State sought to terminate Mother's parental rights. At the beginning of trial, Mother told the district court that she might need to leave early to help her mother home from a hospital. Mother finished the day but did not appear for the second day of trial. Mother told counsel that she was having transportation issues and intended to participate, but she failed to appear on either the second or third days of trial. The district court found her in "default", heard a proffer by the State, reviewed the evidence, and terminated Mother's parental rights. Mother appeals.

ISSUES: (1) Due process; (2) sufficiency of the evidence; (3) best interests of the children

HELD: Mother had a constitutionally protected, fundamental liberty interest in her relationship with her children. Mother was able to present her case-in-chief on the first day of trial. She had additional opportunities to be heard again on other days of the trial, but she chose not to attend. No evidence was presented on days that Mother was not present in court. The State had an interest in concluding the proceedings quickly so that the children had finality as soon as possible. The State had a justifiable interest in concluding the proceedings even in Mother's absence. K.S.A. 2018 Supp. 38-2269(b)(7) requires that reasonable – not effective – efforts be made towards rehabilitation. Efforts made towards rehabilitation were reasonable in this case. There was clear and convincing evidence that Mother was unfit and that that unfitness was unlikely to change in the foreseeable future. The district court did not abuse its discretion by finding that termination of Mother's parental rights was in the children's best interests.

CONCURRENCE: (Atcheson, J.) Mother chose not to appear at the last two days of her termination hearing. The State did not impede her ability to participate. Under these circumstances, Mother has no legal basis to complain about a denial of due process rights – she received all of the process she was due.

STATUTE: K.S.A. 2018 Supp. 38-2246, -2267(a), -2269(a), -2269(b), -2269(b)(7) -2269(b)(8), -2269(c), -2269(g)(1), -2271

Criminal

UNLAWFUL SEXUAL RELATIONS
STATE V. JOHNSON
DOUGLAS DISTRICT COURT—AFFIRMED
NO. 118,380—JUNE 21, 2019

FACTS: Johnson worked as a paraprofessional educator. K.E. was a student in the district and was ordered to attend school at the facility where Johnson worked. K.E. and Johnson started flirting outside of school through social media. The relationship progressed, and the two had sexual intercourse one time. K.E. eventually told his father about the relationship, and he contacted law enforcement. After being questioned, Johnson admitted her actions to law enforcement. A jury convicted Johnson of unlawful sexual relations, one count of sexual exploitation of a child, and one count of promoting obscenity to a minor. She appealed.

ISSUES: (1) Constitutionality of K.S.A. 2015 Supp. 21-5512(a)(9); (2) sufficiency of the evidence; (3) alternative means; (4) transmission of obscene material

HELD: K.S.A. 2015 Supp. 21-5512(a)(9) prohibits consensual sexual activity when the offender is a teacher "or other person in a position of authority" employed at a school where the child is enrolled. The phrase "or other person in a position of authority" is not unconstitutionally vague; it has meaning that can be clearly understood through common understanding and practice. There was sufficient evidence to show that Johnson was in a position of authority at K.E.'s school, and he was a student enrolled at the facility. Sexual exploitation of a child is not an alternative means crime, so the State was not required to prove all of the listed means beyond a reasonable doubt. There was sufficient evidence to prove that Johnson promoted K.E.'s sexually explicit performance to arouse sexual desires. The photos and videos that Johnson sent to K.E. were "obscene material" as used in the statute. There is no requirement that the material be tangible, and digital photographs are allowable.

STATUTE: K.S.A. 2015 Supp. 21-5510(a)(1), -5510(d), -5510(2)(B) -5512(a), -5512(a)(9), -5512(d)(9)

Tags:  8807  Douglas District  McPherson District  Reno District  Sedgwick District  Shawnee District  unlawful sexual relations 

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June 14, 2019 Digests

Posted By Administrator, Monday, June 17, 2019

Kansas Supreme Court

Civil

CONSTITUTIONAL ISSUES—DAMAGES
HILBURN V. ENERPIPE LTD.
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS REVERSED
DISTRICT COURT IS REVERSED, CASE REMANDED
NO. 112,765—JUNE 14, 2019

FACTS: Hilburn was injured when her car was rear-ended by a semi owned by Enerpipe Ltd. Hilburn sued, claiming that the driver's negligence caused the accident, and that Enerpipe was vicariously liable for the driver's actions. Enerpipe admitted to both of these facts, and a trial was held only on the issue of damages. A jury awarded Hilburn $335,000 which included $33,490.86 for medical expenses and $301,509.14 for noneconomic losses. Defense counsel prepared a verdict form with a total award of $283,490.86 which represented the jury's total award with the amount adjusted to reflect the $250,000 cap of K.S.A. 60-19a02(d). Hilburn objected, claiming the statutory cap was unconstitutional under sections 1, 5, and 18 of the Kansas Constitution Bill of Rights. The district court affirmed the lesser award and Hilburn appealed. The court of appeals affirmed, believed itself to be bound by prior Supreme Court decisions. Hilburn's petition for review was granted.

ISSUES: (1) Issue preservation; (2) quid pro quo test for section 5 claims; (3) facts versus policy

HELD: The version of Supreme Court rule 8.03 in effect at the time Hilburn filed her petition for review allows the court to address a plain error not presented. The issue of whether the quid pro quo test applies to Hilburn's section 5 claim was properly preserved under the old rule because Hilburn preserved it in the district court and it was addressed by the court of appeals. Section 5 of the Kansas Constitution Bill of Rights preserves the jury trial right as it historically existed at common law. This protection extends to a determination of noneconomic damages. K.S.A. 60-19a02 infringes on this constitutional right. In the past, this infringement has been excused by the two-part quid pro quo test applied through a section 18 analysis. However, continued application of the prior decision in Miller, relying on stare decisis, cannot withstand scrutiny. The section 5 right to jury trial is completely distinct from the section 18 right to remedy. A statutory cap substitutes the legislature's nonspecific judgment for a jury's specific judgment. This runs afoul of the constitution's grant of an "inviolate" right to a jury. The cap on damages imposed by K.S.A. 60-19a02 is facially unconstitutional because it violates section 5 of the Kansas Constitution Bill of Rights.

CONCURRENCE: (Stegall, J.) Justice Stegall agrees that the quid pro quo test should be reversed in favor of an application of the plain and original public meaning of section 5. He first considers whether K.S.A. 60-19a02 even implicates section 5 and concludes that it does, since K.S.A. 60-19a02 is a procedural measure affecting who decides a particular question.

DISSENT: (Luckert, J. joined by Biles, J.) She would continue to apply stare decisis and follow Miller, analyzing this issue under the quid pro quo test. She believes Hilburn did not properly preserve this issue in her petition for review. And even if the issue is analyzed on the merits, she believes that mandatory motor carrier liability insurance provides an adequate substitute remedy for litigants.

STATUTES: Kansas Constitution Bill of Rights Sections 1, 5, and 18; K.S.A. 60-19a02, -19a02(d)

DUI—FIELD SOBRIETY TESTS—SEARCH AND SEIZURE
CASPER V. KANSAS DEPARTMENT OF REVENUE
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS REVERSED
DISTRICT COURT IS AFFIRMED
NO. 115,352—JUNE 14, 2019

FACTS: Casper's driving privileges were suspended after she was arrested and refused to take a blood alcohol test. An officer saw Casper make a wide turn. He followed her and did not notice any other indicators of impairment, but he still initiated a stop. The officer testified that Casper was initially cooperative but later claimed that she failed her field sobriety tests: a horizontal gaze nystagmus test, a walk-and-turn test, and a balance-on-one-foot test. After these failures, Casper was arrested. She refused to take a breathalyzer test. Based on her refusal to take a blood test, Casper's driving privileges were suspended. She appealed, but the decision was affirmed after the hearing officer found that law enforcement had reasonable grounds to believe that Casper was under the influence. The district court disagreed, holding that Casper showed that the officer lacked reasonable grounds for believing that she was driving under the influence. The Department of Revenue appealed and the court of appeals reversed the district court, finding that there were adequate grounds for the stop and arrest. Casper's petition for review was granted.

ISSUE: (1) Factual grounds for a stop

HELD: Casper's license could only be suspended if the initial arrest was lawful. And in order to have a lawful arrest, there must have been probable cause to justify the arrest. There was no evidence that Casper's breath bore a strong odor of alcohol. The district court correctly heard all of the testimony and reviewed the recordings. The evidence before the district court was substantial and competent and the court made reasonable inferences from that evidence. The court of appeals improperly discounted those findings and should have given more deference to the district court as fact-finder. The district court's reversal of the hearing officer was supported by substantial competent evidence and should be affirmed.

STATUTE: K.S.A. 2018 Supp. 8-1002(a)(1), -1001(b)(1)(a), -1020(a), -1020(h)(1)(B)

SCHOOL FINANCE
GANNON V. STATE
SHAWNEE DISTRICT COURT—PROPOSED REMEDY
SUBSTANTIALLY COMPLIES
NO. 113,267—JUNE 14, 2019

FACTS: In June 2018, the court acknowledged that almost all issues in the long-running school finance litigation had been resolved. The court found that the equity piece was satisfied, and although the adequacy piece was not yet met, the court recognized an "intent to comply." The mandate was stayed until the end of the fiscal year in order to give the State more time to make financial adjustments and reach constitutional compliance for adequacy. The legislature's proposed remedy was through passage of 2019 House Substitute for Senate Bill 16, which was passed and signed by the governor in April 2019. The bill attempts to cover inflation with additional funding, completing the safe harbor remediation plan. Senate Bill 16 now comes to the court for review.

ISSUE: (1) Compliance with safe harbor plan and accounting for inflation

HELD: The "safe harbor" plan involves the State returning to the basic funding plan approved in 2009-10, with adjustments made for inflation. These 2009-10 calculations included adjustments for virtual state aid. S.B. 16 accounts for inflation by increasing the specific base aid figure for each of the remaining four years of the remediation plan. S.B. 16 substantially complies with prior court decisions and adequately funds education. The court retains jurisdiction to ensure continued implementation of the scheduled funding.

STATUTES: Article 6, § 6(b) of the Kansas Constitution; K.S.A. 72-5132(a) 

Criminal

CRIMINAL HISTORY—JURISDICTION—SENTENCING
STATE V. WEBER
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS AFFIRMED
DISTRICT COURT IS AFFIRMED
NO. 113,472—JUNE 14, 2019

FACTS: Weber pled guilty to attempted robbery. The plea agreement assumed that his criminal history score would be C. A presentence investigation report revealed two Michigan convictions which, if scored as person felonies, would increase his criminal history score to B. The district court imposed sentence using the B score. Weber did not directly appeal his conviction or sentence. Some years later, Weber filed a motion to correct illegal sentence based on the State v. Murdock holding; he argued that because Kansas statutes did not use the person/nonperson designations at the time of his conviction, his out-of-state convictions should be designated as nonperson felonies. The district court denied his motion and Weber appealed. The court of appeals affirmed, citing Keel and Murdock II and noting that the test was to look for comparable offenses. Weber's petition for review was granted.

ISSUES: (1) Letter of additional authority; (2) sentencing authority

HELD: The State could not use a Rule 6.09(b) letter as a substitute for a responsive brief. The statutory changes and case law updates occurred well before the State's briefing deadline would have passed. Wetrich was a change in the law. Under the law at the time of Weber's sentencing, offenses had to be comparable but not identical. Because Weber's Michigan offense was comparable to a Kansas offense, his sentence was not illegal.

STATUTES: K.S.A. 2018 Supp. 21-6811(e), -6811(e)(3); 22-3504(3); K.S.A. 21-4711(e)

Kansas Court of Appeals

Civil

PATERNITY
STATE EX REL SECRETARY OF DCF V. MANSON
SHAWNEE DISTRICT COURT—AFFIRMED
NO. 119,134—JUNE 14, 2019

FACTS: Traig Manson executed a voluntary acknowledgement of paternity (VAP) acknowledging that he was C.M.'s father. When Manson was asked to pay child support, he produced genetic testing results which allegedly showed that he was not C.M.'s biological father. He also claimed that he had no relationship with the child and that the child referred to another man as "Dad." The district court conducted a Ross hearing to determine whether official genetic testing was in two year old C.M.'s best interests. At the hearing, Manson explained that he allowed his name to go on C.M.'s birth certificate to help out the biological mother, but that he had never really had a true paternal relationship with C.M. In an effort to obtain support for C.M., DCF produced the VAP that Manson signed and noted that he did not rescind the signature within one year. The district court ruled that genetic testing was not in C.M.'s best interests and Manson appealed.

ISSUE: (1) Effect of VAP

HELD: Because Manson did not rescind his acknowledgement of paternity within one year, he remains C.M.'s father. Even if testing revealed that Manson was not C.M.'s father, he would still be required to pay child support because of the VAP. For that reason, the district court correctly refused to order genetic testing.

STATUTE: K.S.A. 2018 Supp. 23-2204, -2204(b)(1)

Tags:  8807  DUI  field sobriety tests  paternity  school finance  search and seizure  Sedgwick District  Shawnee District 

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May 31, 2019 Digests

Posted By Administration, Monday, June 3, 2019

Kansas Supreme Court

Attorney Discipline

ORDER OF DISBARMENT
IN THE MATTER OF PAMELA J. THOMPSON
NO. 120,818—MAY 31, 2019

FACTS: A hearing panel found that Thompson violated KRPC 1.15 (safekeeping property); 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation); 8.4(d) (engaging in conduct prejudicial to the administration of justice). The allegations arose after Thompson hired Qualified Plan Solutions to provide administrative services for 401(k) retirement accounts for Thompson and her employees. Thompson was the plan's administrator and trustee. Beginning in January 2016, Thompson withheld funds from her paychecks and her employees' paychecks. But except on one occasion, she did not deposit the funds as required by the plan. It was not until February 2017 that Thompson's employees noticed that their 401(k) accounts were underfunded. Thompson worked with QPS to get the accounts current, including both salary deferrals and earned interest. It was alleged that Thompson got the money to make these deposits by converting money from estate cases without being given approval by the court.  

HEARING PANEL: Thompson stipulated to the violations. The hearing panel noted several aggravating factors, including a dishonest or selfish motive and a pattern of misconduct. The misconduct was somewhat mitigated by Thompson's personal and emotional problems, but the panel did not believe that Thompson's stress and anxiety excused the misconduct. The disciplinary administrator recommended that Thompson be disbarred. Thompson asked that discipline be limited to a one-year suspension. A majority of the hearing panel recommended that Thompson be indefinitely suspended.

HELD: Thompson did not file exceptions to the report and the findings were deemed admitted. After considering the facts, the court agreed with the disciplinary administrator and ordered disbarment. The court found that Thompson's misconduct was too serious to justify a lesser sanction.

criminal 

appeals—criminal procedure—motions
state v. douglas
reno district court—reversed and remanded
court of appeals—affirmed
no. 119,170—may 31, 2019

FACTS: During traffic stop, officer observed a capsule sticking out of Douglas’ pants pocket. Capsule then dropped while Douglas exited the car. Capsule was retrieved and tested positive for methamphetamine. Douglas filed motion to suppress, arguing violation of constitutional rights. District court agreed, stating no description of the capsule was provided to the court, thus no basis to find the detention was based on a reasonable and articulable suspicion. State appealed, citing officer’s testimony about the capsule. Court of appeals reversed and remanded with directions to deny the motion to suppress. Dissenting judge agreed to the reversal, but would remand for district judge to reevaluate findings based on evidence the officer in fact described the capsule observed in Douglas’ pocket. Douglas’ petition for review granted.

ISSUE: (1) Ruling on motion to suppress—reversal and remand

HELD: When a district court judge’s ruling in favor of defense motion to suppress is infected with an obviously incorrect assessment of State’s evidence that is equivalent to an arbitrary disregard of a portion of that evidence, an appellate court cannot be certain if the district judge, once the error was pointed out, would arrive at the same or a different conclusion. In such circumstances, wisest course for appellate court is to reverse and give district judge another chance to review the record. Panel majority’s reversal and remand with directions to draw an opposite conclusion of law short-circuits that chance. Reversed and remanded for further proceedings. Panel’s decision is affirmed but its instructions to the district court are modified.

STATUTE: K.S.A. 22-3216(2)

appeals—criminal procedure—restitution—sentences
state v. johnson
montgomery district court—affirmed in part—vacated in part
no. 117,788—may 31, 2019

FACTS: Johnson entered a no contest plea to charges of felony murder, aggravated kidnapping, aggravated assault, and criminal possession of firearm. Sentencing included: inconsistent references as to whether the life sentence for felony murder included possibility of parole after 25 years or required lifetime postrelease supervision; ambiguity about what sentences were to run concurrent or consecutive; and journal entry stating that restitution was “to be determined (TBD).” Johnson appealed on sentencing claims.

ISSUES: (1) Lack of preservation of consecutive sentencing issue; (2) jurisdiction to impose restitution; (3) illegal sentence aspects requiring correction without remand

HELD: Merits of Johnson’s claim—that district court relied on facts outside the record in sentencing consecutive terms on felony murder and aggravated kidnapping convictions—is not considered. Johnson failed to raise this issue in district court, and does not explain why issue should be considered for first time on appeal.

District court’s failure to follow procedure mandated in State v. Hall, 298 Kan. 978 (2014), and State v. Charles, 298 Kan. 993 (2014), deprived district court of jurisdiction to set restitution later. That portion of journal entry and subsequent nunc pro tunc order indicating restitution remains “TBD” is vacated.

State concedes that judge’s inconsistent statements about parole eligibility after 25 years, not lifetime postrelease supervision, made this aspect of Johnson’s sentence illegal. The lifetime postrelease supervision term imposed at sentencing is vacated. Also, on face of record that clearly shows judge’s intention, no further action is required to correct the criminal possession sentence to make it concurrent with the other three sentences.

STATUTE: K.S.A. 2018 Supp. 21-6620(b)(1), -6820(i), 22-3504(1), -3504(3), -3717(b)(2)

criminal procedure—jurisdiction—motions—sentences—statutes
state v. smith
sedgwick district court—affirmed
court of appeals—affirmed
No. 113,828—may 31, 2019

FACTS: Smith was convicted in 1984 on a guilty plea to charges of burglary and theft. Jail credit not addressed at sentencing or in final journal entry. No appeal from subsequent revocation of probation in the 1984 case. Smith filed 2014 motion for jail credit for time spent in county jail and residential facility. District court denied the motion, finding any jail credit issue had been waived. Smith appealed, arguing broad interpretation of his pro se motion as one filed under K.S.A. 60-1507, or under K.S.A. 22-3504 citing State v. Guzman, 279 Kan. 812 (2005). Court of appeals affirmed in unpublished opinion. Smith petitioned for review, seeking resolution of conflict in court of appeals’ opinions regarding district court’s jurisdiction to review post-conviction jail credit motions.

ISSUES: (1) Jurisdiction; (2) clerical error

HELD: Smith’s failure to raise issue of jail credit on direct appeal does not foreclose a motion under the nun pro tunc provision in K.S.A. 22-3504(2) to review clerical errors in judgments. The words “at any time” in that subsection means Kansas courts, with some exception, have jurisdiction to determine whether a clerical error occurred even after the time for an appeal has passed. Contrary holdings are disapproved in unpublished panel opinions in this case, State v. Muldrow (No. 107291), State v. Blazier (No. 110070), State v. Olson (No. 102226),  State v. Burnett (No. 112681), State v. Brown (No. 111052), State v. Arculeo (No. 110974), State v. Lakin (No. 111060), State v. Walker (No. 109309), and any other court of appeals decision holding that a criminal defendant cannot move for correction of jail credit if the defendant failed to raise the issue in a direct appeal.

Summary dismissal of Smith’s motion was warranted. Smith requested 18 months of jail credit, but identified no clerical error. Instead, Smith makes conclusory statements, presents no evidentiary support and provides nothing in the record warranting relief.

CONCURRENCE AND DISSENT (Luckert, J.): Agrees that Smith’s failure to raise issue of jail credit on direct appeal did not result in waiver of the issue if relief is sought under K.S.A. 22-3504(2). Disagrees with majority’s conclusion that district court can be affirmed because Smith failed to allege a jurisdictional basis for his motion. Reasons cited for why the merits of Smith’s motion cannot be evaluated at this time, including whether standard for “clerical error” stated in State v. Storer, 53 Kan.App.2d 1 (2016), should be adopted. Would remand to allow parties to develop their procedural, factual and legal arguments about whether a clerical error occurred.

STATUTES: K.S.A. 2018 Sup. 21-6615, 22-3504(1), -3504(2), -3717(d)(1), -3717(q); K.S.A. 21-4614, 22-3504(1), -3504(2), 22-3722, 60-1507

Kansas Court of Appeals

Civil

EXHAUSTION OF ADMINISTRATIVE REMEDIES—UNEMPLOYMENT
LUCKETT V. KANSAS EMPLOYMENT SECURITY BOARD OF REVIEW
GEARY DISTRICT COURT—REVERSED AND REMANDED
NO. 119,717—MAY 31, 2019

FACTS: After losing her job, Luckett filed for weekly unemployment insurance benefit claims with the Kansas Department of Labor. Although some of her claims were denied, Luckett was awarded unemployment benefits for a certain period of time. In a letter dated more than 60 days after the last decision was rendered, Luckett sought payment of the benefits that were awarded as well as reconsideration of another decision. The referee who received Luckett's letter construed it as a motion to reconsider and denied it on grounds that it was untimely and failed to establish excusable neglect for a late appeal from a denial. The referee did not address Luckett's claim that she had not yet been paid the benefits that were awarded to her. Luckett again sent a letter clarifying that she wanted to be paid the benefits that she was awarded. Luckett filed a petition for judicial review. The district court ultimately granted KDOL's motion to dismiss, finding that Luckett's appeals were untimely. She appealed.

ISSUES: (1) Correct standard; (2) finding of excusable neglect; (3) motion to amend

HELD: Luckett's appeal was based on the KJRA. For that reason, a summary judgment standard is inappropriate. It is undisputed that Luckett's November 2017 letter was filed beyond the 16-day time limit established by statute. But that letter was not an appeal of an adverse decision. And the examiner's original decision allowed for reconsideration within one year assuming that Luckett provided some necessary information. That was what Luckett was attempting to do. The KDOL erred by construing Luckett's letter as an appeal. Luckett's filings were not untimely, and she was not required to exhaust administrative remedies before receiving relief. Luckett had claims consistent with a mandamus action. It was error to dismiss Luckett's petition for review without considering her motion to amend.

STATUTES: K.S.A. 2018 Supp. 44-703(d), -709(b)(2), -709(b)(3), -709(i), 60-215(a)(2), 77-603(a), -621(a)(1), -621(c)(4), -621(c)(7), -621(d); K.S.A. 60-

Criminal

criminal procedure—motions—sentences
state v. gonzalez
sedgwick district court—affirmed
no. 119,311—may 31, 2019

FACTS: Gonzalez pleaded guilty to criminal charges in 2012 and was granted probation. In 2013, he violated probation and served an 8-month prison sentence. In 2016, he was ordered to be deported. He filed a 2017 motion to withdraw his plea, arguing his attorney had not explicitly discussed deportation. He then amended his motion to claim excusable neglect for his untimely motion, citing his belief at the time of his plea that he was a lawful permanent resident non-citizen entitled to same protections as a United States citizen. District court denied the motion, finding Gonzalez failed to show excusable neglect.

ISSUE: (1) Post-sentence motion to withdraw plea

HELD: In this case, the acknowledgment of rights and entry of plea form that Gonzalez received during his plea hearing, reviewed with his attorney, understood and signed satisfied the requirements in Padilla v. Kentucky, 559 U.S. 356 (2010), as its language clearly identified deportation as a likely outcome instead of a mere abstract possibility.

STATUTE: K.S.A. 2018 Supp. 22-3210(d)(2), -3210(e)(1)(A), -3210(e)(2), -3608(c)

Tags:  8806  Attorney Discipline  Geary District  Montgomery District  Reno District  Sedgwick District  Weekly20190604 

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April 19, 2019 Digests

Posted By Administrator, Monday, April 22, 2019

Kansas Supreme Court

CIVIL

DATE OF INJURY—WORKERS COMPENSATION
KNOLL V. OLATHE SCHOOL DISTRICT NO. 233
WORKERS COMPENSATION BOARD OF APPEALS—REVERSED and REMANDED

COURT OF APPEALS—AFFIRMED 
NO. 116,167—APRIL 19, 2019

FACTS: Knoll filed a claim for workers compensation coverage and requested a hearing. The claim did not proceed to final hearing within three years, so the school district moved for dismissal. The ALJ denied that request, holding that under K.S.A. 2009 Supp. 44-523(f) Knoll had five years to either proceed to final hearing or request an extension of time. The Board affirmed that holding but the Court of Appeals reversed, finding that K.S.A. 2011 Supp. 44-523(f)(1) controlled Knoll's claim and required either a final hearing or a motion within three years. Knoll's petition for review was granted.

ISSUE: (1) Which version of K.S.A. 44-523 controlled Knoll's claim

HELD: The only issue is which version of the statute controls—the 2009 version, which allows five years, or the 2011 version, which allows three years. The beginning point for applicable law in a workers compensation case is the date of injury. For Knoll, that was in 2009. But when a law changes, the amendments apply to the worker if the changes are procedural in nature. Statutes of limitation are considered procedural, and the 2011 amendments to K.S.A. 44-523 were very similar to a statute of limitation. And the changes went into effect before Knoll filed her application for hearing. K.S.A. 2011 Supp. 44-523(f)(1) applies to any cases that were pending during its enactment where the claimant did not file an application for hearing until after the 2011 amendments took effect.

DISSENT: (Rosen, J.) The 2011 changes to K.S.A. 44-523 do not create a three-year time limit. While the 2011 statute was the correct one to apply to Knoll's claim, it does not bar the ALJ from considering Knoll's request for an extension of time.

STATUTES: K.S.A. 2011 Supp. 44-523(f)(1); K.S.A. 2009 Supp. 44-523(f)

ELECTRONIC FILING—MOTIONS TO DISMISS
LAMBERT V. PETERSON
WYANDOTTE DISTRICT COURT—AFFIRMED
NO. 117,344—APRIL 19, 2019
 

FACTS: Lambert filed a medical malpractice action as the administrator of the estate of Stan Novak. All defendants filed motions to dismiss on grounds that Lambert's petition was barred by the statute of limitations; file stamps on the petition showed it was filed one day after the two-year limitations period expired. Lambert responded by claiming that she electronically filed the petition within the statute of limitations but it was rejected by the clerk's office. Once she learned of the rejection she made the required changes and uploaded the petition for a second time, although it was outside of the statute of limitations. Lambert argued that the petition should be deemed filed as of the date of payment. The district court heard the motion, at which Lambert provided no testimony and presented no affidavit or declaration. The district court ruled that it was unable to equitably extend the statute of limitations and dismissed the action. Lambert appealed and the Supreme Court took the case on transfer.

ISSUE: (1) Date of filing

HELD: It is undisputed that the limitations period ran two years following Novak's death, and it is undisputed that the petition was filed one day after that date. Lambert's claim that the petition was actually filed on that date is not supported by any evidence in the record on appeal. Lambert had the opportunity to present evidence, through an affidavit or declaration, but she failed to do so. Lambert also failed to present the actual documents that were transmitted in her first attempt to electronically file the petition. Lambert's failure to present adequate evidence means the district court's ruling must be affirmed.

STATUTES: K.S.A. 2018 Supp. 60-212(d), -256, -656(c)(2), -656(e)(2); K.S.A. 60-513(a)(4), -513(a)(5), -513(a)(7)

WORKERS COMPENSATION
GLAZE V. J.K. WILLIAMS LLC
WORKERS COMPENSATION BOARD—BOARD OF APPEALS IS AFFIRMED
BOARD IS AFFIRMED
NO. 115,763—APRIL 19, 2019

FACTS: Glaze claimed that he was injured while working for J.K. Williams, LLC, and he filed a motion for hearing. In 2016, Williams moved to dismiss claiming that Glaze's claim should be dismissed because the claim had been neither heard nor settled within three years of filing the application for hearing. After the motion was filed, Glaze filed a request for extension of time. The ALJ granted Williams' motion to dismiss, finding that K.S.A. 2011 Supp. 44-523(f)(1) required dismissal because Glaze did not request an extension of time within three years of the filing of his application for hearing. This decision was confirmed by the Workers Compensation Board of Appeals and again by the Court of Appeals. Glaze's petition for review was granted.

ISSUE: (1) Requirements of K.S.A. 2011 Supp. 44-523(f)(1)

HELD: K.S.A. 2011 Supp. 44-523(f)(1) unambiguously prohibits an ALJ from granting an extension of time unless the motion for extension has been filed within three years of the filing of the application for hearing.

DISSENT: (Rosen, J.) Justice Rosen would look beyond the majority's grammatical reasoning when considering ambiguity. This statute is susceptible to multiple interpretations and for that reason, he believes the Legislature intended the three-year time limit to apply to a conclusive presumption of good cause.

STATUTE: K.S.A. 2011 Supp. 44-523(f)(1)

CRIMINAL 

consTitutional law—criminal law—criminal procedurE—evidence—motions—sentences—statutes
state v. boysaw
sedgwick district court—affirmed
court of appeals—affirmed
NO. 112,834—april 19, 2018

FACTS: Boysaw was charged with aggravated indecent liberties with a child. He filed motion in limine to bar evidence of his criminal history or uncharged conduct. Finding probative value of the proffered evidence was not outweighed by prejudicial effect, district court allowed State to introduce evidence of Boysaw’s 1987 Nebraska sexual assault conviction, for purposes of showing both propensity and motive or intent and absence of mistake. Jury convicted Boysaw on the charged offense. Life sentence without parole imposed.  Boysaw appealed claiming: (1) State provided insufficient evidence his conduct was intended to arouse or satisfy sexual desires; (2) admission of evidence of the Nebraska conviction violated fair trial guarantees in U.S. and Kansas constitutions; (3) district court erred in weighing probative value of prior conviction evidence against prejudicial effect; and (4) error to use the Nebraska conviction to sentence him as a habitual sex offender. Court of appeals affirmed, 52 Kan. App. 2d 635 (2016). Review granted.

ISSUES: (1) Sufficiency of the evidence; (2) constitutionality of K.S.A. 2018 Supp. 60-455(d); (3) probative value of prior conviction versus prejudicial effect; (4) sentencing

HELD: Evidence of Boysaw’s intent was circumstantial but compelling enough on the record to provide more than sufficient evidence to prove elements of the crime.

K.S.A. 2018 Supp. 60-455(d) does not violate federal constitutional protections. Court outlines law in effect for admission of evidence under K.S.A. 60-455 in State v. Prine, 287 Kan. 713 (2009)(Prine I), the Legislature’s amendment of the statute in response, and rejection of the ex post facto challenge to application of the amended statute in State v. Prine, 297 Kan. 460 (2013)(Prine II). Given the historical use of propensity evidence in Kansas, coupled with safeguard of weighing probative against prejudicial effect of the evidence, the statute does not offend any principle of justice so rooted in traditions and conscience of the people of Kansas that it must be deemed fundamental. State constitutional argument is not decided because Boysaw failed to adequately brief why a different result should follow under state guidelines. Long history of coextensive analysis of rights under the two constitutions is noted for consideration in any future argument on this issue.

K.S.A. 2018 Supp. 60-455 and Fed.R.Civ.P. 403 are compared. In Kansas, the weighing of probative value versus prejudicial effect is a judicial construct rather than rule based. Factors to be considered in that weighing are set forth. In this case, district court’s analysis of the admissibility of K.S.A. 2018 Supp. 60-455(d) evidence is approved and upheld.

Boysaw abandoned his claim that the Nebraska conviction did not qualify as a sexually violent crime in Kansas, and his challenge to the constitutionality of K.S.A. 2018 Supp. 21-6626 was defeated by controlling caselaw.

STATUTES: K.S.A. 2018 Supp. 21-5506(b)(3), -6626, 60-455, -455(d); K.S.A. 2012 Supp. 21-5506(b)(3)(A), -5506(c)(3); K.S.A. 2009 Supp. 21-4642; K.S.A. 60-455

appeals—criminal procedure—motions—sentences—statutes
state v. murdock
shawnee district court—reversed and remanded
NO. 117,315—april 19, 2019

FACTS: Murdock was convicted of aggravated robbery and robbery. On appeal, Kansas Supreme Court reversed and remanded for resentencing, finding Murdock’s prior out-of-state convictions must be scored as nonperson offenses, and holding the comparable Kansas offense should be determined as of the date the out-of-state offenses were committed. 299 Kan. 312 (2014). At resentencing, district court applied Murdock and scored the out-of-state convictions as nonperson felonies, resulting in a criminal history of C instead of A. Six months later, State v. Keel, 302 Kan. 560 (2015), overruled Murdock, holding the comparable Kansas offense is the one in effect at the time the current crime of conviction was committed. State then moved to correct Murdock’s sentence. District court granted the motion and sentenced Murdock a third time, finding a criminal history score of A. Murdock appealed, arguing his second sentence was legally imposed under Murdock, and did not become illegal after Keel changed the law. While his appeal was pending, the legislature amended K.S.A. 22-3504 to state a sentence is not made illegal by a change in the law after the sentence is pronounced. Case transferred to Kansas Supreme Court, which granted supplemental briefing on retroactive application of the amended statute, and on Murdock’s alternative argument based on State v. Wetrich, 307 Kan. 552 (2018).

ISSUE: (1) Legality of sentence

HELD: Under K.S.A. 22-3504, the legality of a sentence is controlled by the law in effect at the time the sentence was pronounced. Therefore, a sentence that was legal when pronounced does not become illegal if the law subsequently changes. K.S.A. does not give either party the benefit of later changes in the law, but does give both parties the opportunity to revisit a merits determination of legality in the limited circumstance when there is reason to think that determination was wrong in the first place. Here Murdock’s second sentence was legally imposed according to the Murdock mandate, and Keel did not render Murdock’s second sentence illegal. Reversed and remanded to reinstate Murdock’s lawful sentence. Applicability of Wetrich and retroactivity of the amendment to K.S.A. 22-3504 is not considered.

CONCURRENCE (Biles, J.): Concurs in the result.

STATUTES: K.S.A. 2018 Supp. 22-3504, -3504(3); K.S.A. 2015 Supp. 21-6810(d)(2), -6811(e)(3); K.S.A. 21-4711(e), 22-3504, -3504(1) 

criminal law—criminal procedure—jury instructions
state v. qualls
shawnee district court—reversed and remanded
NO. 115,648—april 19, 2019

FACTS: Qualls convicted of premeditated first-degree murder. Conviction reversed, based on district court’s failure to give lesser included offenses instructions. 297 Kan. 61 (2013). On retrial, jury again found him guilty of premeditated first-degree murder. Qualls appealed on issues including alleged error in not granting a defense request for a self-defense instruction.

ISSUE: (1) Self-defense instruction

HELD: State v. Haygood, 308 Kan. 1387 (2018), clarified the objective and subjective requirements that must be met to receive a self-defense instruction, and the kind of evidence that suffices to meet those requirements. In the present case, a self-defense instruction was legally appropriate, and under Haygood, Qualls’ testimony was sufficient to make the self-defense instruction factually appropriate. Under facts in this case, denying the requested self-defense instruction was error, and the error was not harmless. Reversed and remanded to district court.

STATUTE: K.S.A. 2017 Supp. 21-5108(c), -5222

constitutional law—criminal law—criminal procedure—evidence—motions—sentences—statutes
state v. razzaq
sedgwick district court—affirmed; court of appeals—affirmed
NO. 114,325—April 19, 2019

FACTS: Razzaq was convicted of aggravated indecent liberties with a child. Court of appeals affirmed the conviction in an unpublished opinion. Razzaq’s petition for review granted on claims that: (1) district court erred in allowing a State witness to introduce fact of Razzaq’s prior convictions in Missouri for sex crimes, (2) K.S.A. 2918 Supp. 60-455(d) violates Kansas Constitution’s right to fair trial; (3) Court of appeals inadequately addressed the speedy trial issue raised in supplemental briefing; and (4) constitutional error to use prior convictions to enhance sentence.

ISSUES: (1) Probative value of prior convictions versus prejudicial effect; (2) constitutionality of K.S.A. 2018 Supp. 60-455(d) under Kansas Constitution; (3) speedy trial; (4) sentencing

HELD: As held in State v. Boysaw (Case No. 112,834, decided this date), safeguards in Kansas courts for admission of evidence of other bad acts resemble Federal Rule of Evidence 403, requiring a district court to weigh probative value of such evidence against the danger of unfair prejudice. In this case, the district court implicitly weighed the probative value of evidence of the Missouri convictions against danger of undue prejudice and did not abuse its discretion in admitting the evidence.

No violation of the Kansas Constitution. To the extent Razzaq argues that other states have found state constitutional violations in their bad-acts evidentiary statutes, no similarity to Kansas Constitution is shown.

District court and court of appeals correctly determined that the record does not support Razzaq’s speedy trial claims.

Constitutional challenge to Razzaq’s sentence is defeated by State v. Ivory, 273 Kan. 33 (2002).       

STATUTES: K.S.A. 2018 Supp. 22-3402(b), 60-455(d); K.S.A. 2013 Supp. 60-455(d); K.S.A. 21-3504(a)(1) 

criminal procedure—jurisdiction—motions —post-conviction relief
stAte v. robertson
butler district court—affirmed
NO. 118,427—april 19, 2019

FACTS: Robertson was convicted of first-degree murder, arson, and aggravated burglary. The Kansas Supreme Court affirmed the convictions and sentences on direct appeal, 279 Kan. 291 (2005), and rejected various post-conviction motions seeking relief under K.S.A. 22-3504 and K.S.A. 60-1507. Robertson then invoked jurisdiction under K.S.A. 22-3504 to file motion to correct illegal sentence and motion to dismiss for lack of jurisdiction. He alleged fatal defect in the charging document because it named him as an individual rather than sovereign, and used an incorrect (non-trust) version of his name. He also reserved rights not to perform under Kansas statutes that he construed as commercial contracts. District court summarily denied relief. Robertson appealed.

ISSUES: (1) Motion to correct illegal sentence; (2) motion to dismiss and K.S.A. 60-1507

HELD: Robertson cannot collaterally attack a conviction through a motion to correct an illegal sentence filed under K.S.A. 2018 Supp. 22-3504 that claims a defective complaint meant the district court lacked jurisdiction to convict. Personal jurisdiction distinguished from Robertson’s reliance on subject matter jurisdiction caselaw.

K.S.A. 2018 Supp. 22-3504 provides no statutory basis for jurisdiction over  Robertson’s motion to dismiss. Even if liberally construed as a motion under K.S.A. 2018 Supp. 60-1507, the motion would be procedurally barred as successive and filed out of time.

STATUTES: K.S.A. 2018 Supp. 22-3504, -3504(1), -3504(3), -3601(b)(3), 60-1507, -1507(c), -1507(f)(1), -1504(f)(2); K.S.A. 22-3504, 60-1507 

Kansas Court of Appeals

CIVIL

PARENTS AND CHILDREN
IN RE W.L.
CRAWFORD DISTRICT COURT—AFFIRMED
NO. 119,536—APRIL 19, 2019

FACTS: M.S. and E.L. were in a same-sex relationship but never married. E.L. conceived two children during the relationship, using artificial insemination. There was never a written agreement regarding parentage and it is undisputed that M.S. is not a biological parent and never adopted the children. There was testimony that M.S. was not very involved during the pregnancy and made few decisions regarding the care of the children. After the couple split, M.S. saw the children regularly but E.L. had concerns over whether M.S. was a fit parent. M.S. filed a parentage action. After a trial, the district court concluded that even if M.S. could establish a presumption of parentage under the Kansas Parentage Act, E.L. rebutted that presumption by proving that M.S. failed to meet the criteria of a functional parent.  

ISSUES: (1) Presumption of parentage; (2) rebuttal of presumption; (3) best interests analysis; (4) equal protection

HELD: Under the KPA, an unmarried person seeking to establish a parent-child relationship with a child conceived using artificial reproductive technology must attempt to do so by using the procedure established by the KPA. Although there was no written acknowledgment of parentage in this case, the district court seemed to apply the presumption, to M.S.'s benefit. Although it would have been better to have explicitly done that analysis, any failure by the district court to do so was harmless. The absence of a written agreement makes it difficult to interpret the parties' intent. In the absence of that written agreement, E.L. met her burden to overcome the presumption in favor of M.S. This is especially true because the district court found E.L. to be more credible than M.S., and credibility determinations are not reviewable on appeal. The district court was not required to make a best interests finding, but doing so was not erroneous. M.S. fails to prove that the KPA treats classes of people differently.

STATUTE: K.S.A. 2018 Supp. 23-2204, -2205, -2208(a), -2208(a)(4), -2208(b), -2220, -2302, -2303, 59-2114, -2115

Tags:  Butler District  Crawford District  Sedgwick District  Shawnee District  Weekly20190423  Workers Comp  Wyandotte District 

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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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