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October 16, 2020 Digests

Posted By Administration, Monday, October 19, 2020

Kansas Supreme Court

Attorney Discipline

TWO-YEAR SUSPENSION
IN RE MARK D. MURPHY
NO. 122,036—OCTOBER 16, 2020

FACTS: A hearing panel determined that Murphy violated KRPC 1.1 (competence); 1.2(c) (scope of representation); 1.7 (conflict of interest); 2.1 (independent judgment); and 8.4(d) (conduct prejudicial to the administration of justice). The issues arose after Murphy represented both sides in a business transaction without informing his clients of the potential conflicts of interest and without learning that one party to the transaction had already filed for bankruptcy.

HEARING PANEL: The disciplinary administrator asked that Murphy be disbarred. This incident was part of a pattern of misconduct which resulted in minor discipline. Murphy was dishonest about his role in the proceedings and did so in an attempt to minimize his culpability. Based on the balance of the aggravating and mitigating circumstances, the hearing panel recommended that Murphy's license be suspended for one year.

HELD: Murphy filed several exceptions to the hearing panel report. But the evidence presented supports the hearing panel's findings by clear and convincing evidence, and some of Murphy's arguments mischaracterized the evidence. Murphy argued that the recommended discipline was excessive and that reprimand would be the appropriate discipline or, in the alternative, that he be allowed to serve a term of probation. Both the Disicplinary Administrator and the court found that Murphy failed to comply with the rules regarding probation and denied his request. After considering the evidence, the court concluded that a two-year suspension was the appropriate discipline. The second year of the suspension may be stayed if Murphy follows a probation plan which is approved by the Disciplinary Administrator's office.

criminal

appeals—constitutional law—criminal law—statutes
state v. dale
johnson district court—affirmed in part, reversed in part
court of appeals—affirmed
no. 117,162—october 16, 2020

FACTS: Jury convicted Dale of two counts of aggravated robbery and one count of theft. Dale appealed. Rejecting all grounds but for a jury instruction claim on aggravated robbery, Court of Appeals in unpublished opinion reversed the aggravated robbery conviction and remanded for a new trial on those two counts. On remand, Dale argued his conviction on lesser included crime of theft barred retrial on aggravated robbery counts. Alternatively on issue not raised in his appeal he argued the aggravated robbery counts were multiplicitous. District court convicted Dale on both aggravated robbery counts. Dale appealed. In unpublished opinion, Court of Appeals held Dale’s two aggravated robbery convictions were not multiplicitous, but reversed the theft conviction as multiplicitous with the aggravated robbery convictions. Dale’s petition for review granted. State did not cross-petition for review of panel’s determination that theft was a lesser included offense of aggravated robbery.

ISSUES: (1) Double jeopardy; (2) multiplicity

HELD: Neither the Double Jeopardy Clause nor K.S.A. 21-3107(2)(a) absolutely prevent the continued prosecution of some counts in a prosecution after a criminal defendant has been convicted on other counts. If the continued prosecution follows a defendant’s post-conviction appeal that sought a new trial and, on remand, a defendant is found guilty of a greater offense after a lesser included offense has been affirmed, a court may, absent application of one of a limited number of exceptions, vacate the sentence for the lesser included offense and impose a sentence for the greater offense. Here, Court of Appeals did not err in holding that Dale’s convictions for aggravated robbery would not result in a subsequent prosecution in violation of either a constitutional or statutory right to be free from double jeopardy.

            Under facts of case, Dale’s convictions for two counts of aggravated robbery were not multiplicitous even though they arose from one transaction that constituted unitary conduct because robbers, while armed with BB gun, took property in the possession or control of two individuals by force directed at both.

STATUTES: K.S.A. 2019 Supp. 21-5109; K.S.A. 21-3107, -3107(2), -3107(2)(a), -3108(4)(c), -3426,  -3427

appeals—attorney-client—criminal law—criminal procedure—motions
state v. herring
sedgwick district court—reversed; court of appeals—reversed
No. 118,648—october 16, 2020

FACTS: Herring pleaded no contest to robbery and aggravated assault. Prior to sentencing he filed motion to withdraw his plea, asserting claims of ineffective assistance of counsel. District court denied the motion applying the Strickland test to find Herring failed to satisfy the first factor in State v. Edgar, 281 Kan. 30 (2006). Herring appealed. In unpublished opinion, Court of Appeals found district court erred by using the Strickland test instead of the “lackluster advocacy” standard specified under State v. Aguilar, 290 Kan. 506 (2010), but affirmed the district court’s ruling because the error was harmless. Herring petitioned for review of panel’s application of harmless error.

ISSUE: Motion to withdraw plea—Ineffective assistance of counsel

HELD: District court’s improper use of the more stringent, constitutional Strickland standard when considering the first Edgar  factor is not amenable to harmless error analysis. Panel’s decision is reversed and case is remanded to district court with directions to reassess the first Edgar factor under the lackluster advocacy standard and then exercise its statutory discretion under K.S.A. 2019 Supp. 22-3210(d)(1).  

STATUTE: K.S.A. 2019 Supp. 22-3210(a), -3210(d), -3210(d)(1), -3210(d)(2)

 

Kansas Court of Appeals  

CIVIL

INSURANCE—REAL ESTATE
KRAUSE V. KERNS
JOHNSON DISTRICT COURT— AFFIRMED
NO. 121,842—OCTOBER 16, 2020

FACTS: The Kernses contracted to sell their house to Krause. The purchase contract contained several disclosures but did not mention any issues with water intrusion or the fireplace. After closing on the property, Krause discovered many issues with the property that were not included in the disclosure. Krause sued the Kernses for the misrepresentations or omissions included in the disclosure. The parties ended up settling; the Kernses stipulated to a final judgment of $79,482 in favor of Krause. As part of the agreement the Kernses agreed to assign their rights under their insurance policy to Krause. In return, Krause promised to only pursue collection of the judgment with the insurance company, not with the Kernses personally. Krause filed a garnishment action against the insurance company to recover the judgment amount. The insurance company filed a motion for summary judgment, arguing that the Kernses' insurance policy did not cover misrepresentation and so the company was not liable. The district court granted that motion, finding that policy coverage was triggered by an "occurrence" and that the failure to disclose was not an occurrence. Krause appeals.

ISSUES: (1) Whether coverage exists under the insurance policy

HELD: A threshold requirement of coverage under the insurance policy is the existence of an occurrence. The insurance policy clearly defines "occurrence" as an accident which results in bodily injury or property damage. The facts of this case do not show an occurrence. And even if Krause could prove an occurrence, the policy language which excludes coverage for a claim arising out of any written or oral statement clearly bars Krause's claim.

STATUTES: none

Tags:  Appeals  Attorney Discipline  Attorney-Client  Constitutional Law  Criminal Law  Criminal Procedure  Insurance  Johnson District Court  Motions  Real Estate  Sedgwick District Court  Statutes 

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August 28, 2020 Digests

Posted By Administration, Monday, August 31, 2020

Kansas Supreme Court

Attorney Discipline

ORDER OF DISBARMENT
IN RE SUSAN ELIZABETH VAN NOTE
NO. 16,327—AUGUST 26, 2020

FACTS: In 2012, the Disciplinary Administrator initiated an investigation into Van Note after she was charged with two counts of murder in Missouri. Her license was temporarily suspended while the criminal process concluded. Van Note was acquitted on criminal charges and a wrongful death lawsuit was settled. Van Note was disbarred in Missouri in 2017. In a letter signed by Van Note on July 21, 2020, she voluntarily surrendered her license to practice law in Kansas.

HELD: The Court accepts the surrender of Van Note's license to practice law in Kansas and she is disbarred.

criminal

appellate procedure—contracts—criminal procedure—evidence—motions
state v. Braun
ellis district court—reversed and remanded; court of appeals—reversed
No. 113,762—august 28, 2020

FACTS: State charged Braun with DUI under K.S.A. 2012 Supp. 8-1567(a)(2) for having blood alcohol content of more than 0.08, and in the alternative with DUI under K.S.A. 2012 Supp. 8-1567(a)(3). Braun filed motion to suppress the blood test, arguing the Kansas implied consent law was unconstitutionally coercive. District court denied the motion. In bench trial on a conditioned stipulation of facts to be used for consideration of motion to suppress or as necessary to preserve Braun’s arguments about the motion, district court convicted Braun of DUI under K.S.A. 2012 Supp. 8-1567(a)(2). Journal entry did not mention the alternative charge. Braun appealed the district court’s denial of the motion to suppress. In unpublished opinion the Court of Appeals affirmed Braun’s conviction. Panel found the district court should have suppressed the blood test result but that error was harmless because there was sufficient evidence in the stipulated facts to establish that Braun committed the alternative charge of DUI under K.S.A. 2012 8-1567(a)(3). Braun’s petition for review granted on sole issue of whether panel erred in finding harmless error.

ISSUE: Stipulated facts in support of conviction on alternative charge

HELD: Braun’s conviction is reversed. Parties can agree to conditions that limit the circumstances where stipulated facts can be used, and a court is bound by any such conditions or limitations. Here the purpose of the stipulation was solely to determine the issue of law arising from Braun’s motion to suppress, and also conveyed that the facts would not be binding if an appellate court determined that a conviction based on K.S.A. 2012 Supp. 8-1567(a)(2) was not valid. Panel erred by not considering and applying the conditions that limited the binding nature of the parties’ stipulation. District court’s judgment is reversed and case is remanded for further proceedings related only to the alternative count of DUI under K.S.A. 2012 Supp. 8-1567(a)(2).

STATUTES: K.S.A. 2019 Supp. 60-261; K.S.A. 2012 Supp. 8-1001(k), -1567(a)(2), -1567(a)(3)

constitutional law—criminal law—criminal procedure—motions—sentencing—statutes
state v. Juarez
lyon district court—affirmed; court of appeals—affirmed
no. 118,543—august 28, 2020

FACTS: Juarez entered plea to aggravated battery of prison guard. District court found Juarez guilty but did not notify him of obligation to register as a violent offender under Kansas Offender Registration Act (KORA), and KORA did not list aggravated battery as a crime that automatically required registration. Juarez remained confined until sentencing hearing six weeks later. At sentencing, district court exercised its discretion to require Juarez to register as a violent offender under KORA. Juarez objected to lack of notice to register but offered no evidence on the issue. Sentencing continued to address restitution. Juarez again objected to lack of notice but again offered no evidence and asked for no additional time to present evidence. Three weeks later, sentence became final upon restitution order. Juarez appealed. Court of Appeals affirmed in unpublished opinion, relying on State v. Marinelli, 307 Kan. 768 (2018). Sole issue on review is whether the notice provided by the district court violated Juarez’ right to due process.

ISSUE: Due process—notice of obligation to register as violent offender

HELD: Validity of the district court’s registration order is not challenged and is presumed valid. District court’s failure to provide timely notice of Juarez’s obligation under K.S.A. 2019 Supp. 22-4904(a)(1)(A) did not constitute a denial of procedural due process because Juarez failed to demonstrate prejudice. He neither presented additional evidence nor asked for the opportunity to do so with respect to district court’s exercise of discretion to order registration, and he remained incarcerated with no responsibility to register between the time the district court should have provided notice and the time it actually did so.  

CONCURRENCE (Biles, J.): Concurs with the result but believes Marinelli controls disposition. District court’s timing error does not excuse the registration obligation, and Juarez did not show any prejudice.

CONCURRENCE (Stegall, J.): Concurs that Juarez’ due process rights were not violated, but does so because district court’s registration order was not valid. Based on State v. Thomas, 307 Kan. 733 (2018), once Juarez was convicted the district court lost its opportunity to create the necessary precondition for a registration obligation to spring into existence through judicial fact-finding. When a district court does not make the necessary fact-finding at time of conviction - and the notice is not given - no process has been denied because the defendant is not an offender required to register under KORA.

DISSENT (Rosen, J.)(joined by Beier, J.): Would find Juarez’ due process rights were violated. Stands by his dissents in previous cases that KORA is punitive in effect, and thus is a consequence of Juarez’ plea. Marinelli is distinguished. Here, Juarez plead no contest to a crime while completely unaware the court would later require him to register under KORA, and he was never offered the opportunity to withdraw that plea by demonstrating good cause (pre-sentencing motion) instead of having to show manifest injustice (post-sentencing motion.  

STATUTES: K.S.A. 2019 Supp. 21-5413(b)(2)(A), 22-4901 et seq., -4902(e)(1), -4902(a)(5),  -4904(a)(1)(A); K.S.A. 22-4902, -4905

appeals—appellate procedure—criminal law—statutes
state v. Lindemuth
shawnee district court—reversed and remanded; court of appeals—affirmed
No. 116,937—august 28, 2020

FACTS: Jury convicted Lindemuth of one count of criminal threat, K.S.A. 2019 Supp. 21-5415(a)(1). Court of Appeals reversed, holding trial court erred by rejecting proposed jury instruction on workplace defense. 55 Kan.App.2d 419 (2018). State sought review of panel’s decision on factual appropriateness of the workplace defense instruction. Days prior to oral argument, State v. Boettger, 310 Kan. 880 (2019) and State v. Johnson, 310 Kan. 835 (2019), held the provision in K.S.A. 2019 Supp. 21-5415(a)(1), allowing a conviction if a threat of violence is made in reckless disregard for causing fear, is unconstitutionally overbroad. Lindemuth filed Supreme Court Rule 6.09 letter arguing his appeal was affected and requesting reversal of his conviction as in Johnson. Supplemental briefing ordered.

ISSUE: Change of law—constitutional error

HELD: Panel’s judgment is affirmed as right for the wrong reason. Lindemuth’s conviction cannot stand after Johnson, regardless of outcome on State’s issue for review. Like Johnson, the trial record provides no basis for court to discern whether jury concluded the State had proved beyond a reasonable doubt that Lindemuth committed criminal threat intentionally, and court cannot conclude the State met its burden of showing the constitutional error was harmless. District court’s judgment is reversed and case is remanded with directions.

DISSENT (Biles, J.)(joined by Stegall, J.): Would find the constitutional error harmless under the rationale in Justice Stegall’s dissenting opinion in Johnson, and would keep the case to reach the instructional error claim.

DISSENT (Rosen, J.): Would find the constitutional error harmless. While there was strong evidence supporting intentional conduct in Johnson, he agreed with majority that there was also evidence of recklessness.  Here he sees no evidence of recklessness where Lindemuth simply denied making any threatening statements.

STATUTE: K.S.A. 2019 Supp. 21-5202(h), -5202(j), -5223(a), -5415(a)(1)

 

Kansas Court of Appeals

criminal

appeals—criminal procedure - sentencing
state v. Dominguez
sedgwick district court - reversed and remanded
no. 121,618—august 28, 2020

FACTS: Dominguez sentenced in August 2017 to prison term and granted probation for 24 months. In October 2017 district court found probation violation and imposed three-day quick dip jail sanction. A September 2018 warrant issued for six probation violations. At a July 10, 2019, hearing district court revoked probation, applying the July 1, 2019, amendment to the intermediate sanctioning scheme which removed the requirement for a 120-day or 180-day sanction before revocation could be ordered. Dominguez appealed, arguing for first time that district court should have applied either the law in effect at time of her 2018 probation violations or the law in effect when she committed her 2017 crimes of conviction.

ISSUE: Revocation of probation—K.S.A. 2019 Supp. 22-3716

HELD: Following the reasoning in State v. Coleman 311 Kan. 332 (2020), and finding unpublished Court of Appeals’ opinions on the same issue persuasive, court holds the 2019 amendment to the intermediate sanctioning scheme at K.S.A. 22-3716 does not apply retroactively to probation violators whose crimes were committed before the effective date of the amendment.  State’s reliance on State v. Tearney, 57 Kan.App.2d 601 (2019), is misplaced.  Reversed and remanded for new dispositional hearing. District court must impose either a 120-day or 180-day prison sanction before revoking Dominguez’ probation unless the court finds a valid statutory ground to circumvent further intermediate sanctions.

STATUTES: K.S.A. 2019 Supp. 21-6810(e), 22-3716, -3716(c), -3716(c)(1)(C), -3716(c)(10);  K.S.A. 2018 Supp. 22-3716(c)(1)(A)-(D); K.S.A. 2017 Supp. 22-3716(c)(9)(B), -3716(c)(12); K.S.A. 2016 Supp. 22-3716(c); K.S.A. 22-3716

Tags:  appeals  appellate procedure  constitutional law  contracts  criminal law  criminal procedure  disbarment  Ellis District Court  evidence  Lyon District Court  motions  Sedgwick District Court  sentencing  Shawnee District Court  statutes 

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August 14, 2020 Digest

Posted By Administration, Tuesday, August 18, 2020

Kansas Court of Appeals

criminal 

criminal procedure—sentencing—statutes
state v. vaughn
sedgwick district court—affirmed
no. 121,340—august 14, 2020

FACTS: Vaughn was convicted of possession of methamphetamine with intent to distribute, a crime committed while he was on felony bond for a previous crime. District court imposed prison sentence to run consecutively to Vaughn’s previous sentence finding Special Rule 10 applied and required consecutive sentences, and finding Vaughn failed to show any manifest injustice. Vaughn appealed, arguing the district court had discretion to sentence him concurrently, thus applied the wrong legal standard. State’s response in part acknowledged error in sentencing journal entry’s citation of Special Rule 9 instead of Special Rule 10, to be remedied by a nunc pro tunc order.

ISSUE: K.S.A. 2019 Supp. 21-6606(d)—consecutive prison sentence

HELD: The district court had no discretion to sentence Vaughn concurrently. If a district court sentencing a defendant for a new felony committed while on felony bond under K.S.A. 2019 Supp. 21-6606(d) imposes a prison sanction, that sentence must be consecutive unless the defendant shows manifest injustice. Here, district court’s finding of no manifest injustice is not challenged, and Vaughn’s statutory arguments and appeal to legislative history are rejected. K.S.A. 2019 Supp. 21-6606(d) and K.S.A. 21-6604(f)(4) are examined and interpreted, finding the two statutes are harmonious rather than conflicting.

STATUTES: K.S.A. 2019 Supp. 21-5705(a)(l), -5705(d)(3)(C), -6604(f)(4), -6606, -6606(a), -6606(b), -6606(c), -6606(d), -6606(e), -6819(a); K.S.A. 21-4603d, -4608

Tags:  criminal procedure  Sedgwick District Court  sentencing  statutes 

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July 31, 2020

Posted By Patti Van Slyke, Monday, August 3, 2020

Kansas Court of Appeals

Civil

JURISDICTION—MUNICIPALITIES—OFFENDER REGISTRATION
CITY OF SHAWNEE V. ADEM
JOHNSON DISTRICT COURT—AFFIRMED
NO. 121,328—JULY 31, 2020

FACTS: Adem was convicted of sexual battery in Shawnee Municipal Court and he filed a notice of appeal to the district court. A jury convicted him as charged in district court. As part of his sentence, Adem was required to register as a sex offender under the Kansas Offender Registration Act. He now appeals that finding.

ISSUES: (1) Appellate jurisdiction; (2) applicability of KORA to municipal court convictions;

HELD: The court has jurisdiction to consider Adem's appeal because KORA allows for appeals where registration has been triggered by district court findings. KORA acts in concert with, but not as part of, the Kansas Code of Criminal Procedure or other sentencing statutes. It is its own separate act with its own regulatory purposes. Adem is correct that there is no statute that specifically applies KORA to violations of municipal codes. But K.S.A. 22-4902(b)(7) defines a sex offender as any person who has been convicted of an offense that is "comparable" to one specifically enumerated in the Act. The municipal sexual battery act is identical to the state statute, and Adem was properly required to register under KORA.

STATUTES: K.S.A. 2018 Supp. 22-4902(b)(5), -4902(b)(7), -4902(t)(1); K.S.A. 2017 Supp. 22-3602, -3602(a); K.S.A. 2016 Supp. 21-5505(a); K.S.A. 22-2102, -2103; -3602, -3610(a), 46-1211(b)

CHILD SUPPORT—JURISDICTION
CHALMERS V. BURROUGH
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 121,108—JULY 31, 2020

FACTS: A Florida district court required Chalmers to pay Burrough child support to help care for their daughter. The support amount was based on Chalmers' income as a player for the Miami Heat basketball team. Chalmers retired from the team in 2018 and moved away from Florida. Burrough and the child are Kansas residents. After his employment changed, Chalmers wanted to modify his child support obligation. But he could not do so in Florida because he was no longer a Florida resident. In 2018, Chalmers filed a petition to register and modify the Florida order in Kansas under the Uniform Interstate Family Support Act (UIFSA). Burrough did not dispute Chalmers' attempt to register the judgment, even though he did not comply with UIFSA requirements by including copies of the Florida support order with the filing. The district court registered the Florida order in Kansas and later temporarily modified the support obligation as agreed to by the parties. Burrough then filed a motion to set aside, claiming that she never agreed to the terms. Chalmers also moved for permission to amend his petition to add the required copies of the Florida support order. Burrough countered with a motion to dismiss based on a lack of subject matter jurisdiction, arguing that the Florida support order was never properly registered because Chalmers did not comply with UIFSA requirements when registering the order. The district court agreed with Burrough and vacated its modification of the support order, finding that the presence of a certified copy of the Florida support order was fundamental to registering the order in Kansas. Chalmers appealed.

ISSUES: (1) Whether objection to jurisdiction was waived; (2) whether substantial compliance with UIFSA is adequate

HELD: Kansas only has jurisdiction to modify an out-of-state child support order if that order is first registered in this state. It is undisputed that Chalmers failed to attach to his registration petition two copies, including one certified copy, of his Florida order. Challenges to subject matter jurisdiction can be raised at any time, even outside of the 20-day window contemplated by UIFSA. A Kansas court has no authority to modify an out-of-state child support order until that order is properly registered in Kansas. Litigants are not expected to strictly comply with UIFSA requirements. But attachment of the Florida order was a critical component of the UIFSA registration requirements. The failure to attach two copies of the order meant that Chalmers did not substantially comply with UIFSA and the order was never properly registered in Kansas, divesting the district court of jurisdiction to modify it.

DISSENT: (Atcheson, J.) UIFSA's procedural requirements should not be equated with subject matter jurisdiction. The district court had jurisdiction to modify Chalmers' out-of-state child support order.

STATUTE: K.S.A. 2019 Supp. 23-36,204(b), -36,205, -36,602(a), -36,602(b), -36,603(a), -36,605, -36,606, -36,607, 36,609, -36,610, -36,611(a)

ATTORNEYS—CONSUMER PROTECTION
HERNANDEZ V. PISTOTNIK
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 120,228—JULY 31, 2020

FACTS: Yudi Hernandez was badly injured in an automobile accident at the age of 13. Yudi's older sister, Mirna, helped her family find an attorney to act on Yudi's behalf. A family friend recommended Brad Pistotnik based on Brad's television commercials. Yudi and her family had an initial consultation with Brian Pistotnik, and she retained the Pistotnik firm to represent her. The firm obtained settlement officers for policy limits from all involved parties. But Yudi's father fired the Pistotnik firm and hired Steven Brave to complete the settlement. Yudi received her settlement, but Brian sued her father to recover the costs and attorney fees that were detailed in an attorney fee lien. Yudi sued the Pistotnik firm, claiming they defrauded her under the Kansas Consumer Protection Act. Brad moved for summary judgment, claiming that there was no evidence of fraud and that Yudi was not an aggrieved party under the KCPA. The district court granted Brad's motion, and Yudi appealed.

ISSUES: (1) Applicability of the KCPA; (2) fraud claim; (3) viability of discovery requests; (4) transfer of venue

HELD: The KCPA does not define the term "aggrieved." But case law clarifies that in order to recover under the KCPA, Yudi must show that she was legally harmed and that her harm was causally connected to Brad's advertising. The filing of the attorney fee lien did not harm Yudi. And Yudi cannot show that she relied on any representations in Brad's advertisements when hiring the firmshe was in a medically-induced coma at the time and played no part in the decision of which firm to hire. The district court correctly found that Yudi cannot recover under the KCPA. When alleging fraud, the circumstances constituting fraud must be stated with particularity. Yudi failed to establish that she relied, either directly or indirectly, on any fraudulent representation by the Pistotniks. Complaints to the Kansas Disciplinary Administrator are not discoverable, and the district court did not err by refusing to require Brad or Brian to turn over such documents to Yudi. And settlement agreements which Yudi wanted to obtain in discovery were confidential, meaning the district court did not err by refusing to compel their discovery. The district court did not abuse its discretion by transferring venue to Sedgwick County, where the defendants were located and where all the legal work was completed.

STATUTES: K.S.A. 2019 Supp. 60-208(a), -209(b), -226, -2103(h); K.S.A. 50-623(b), -634(a), 60-609(a)

criminal

criminal procedure—probation—sentencing—statutes
state v. dunham
saline district court—affirmed in part, vacated in part, remanded
no. 121,081—july 31, 2020

FACTS: While on probation for drug crime convictions in two cases, Dunham committed additional crimes leading to three more cases, the last two committed while Dunham was on felony release status. Addressing all five cases the same day, district court revoked probation in Cases 1 and 2 and imposed consecutive prison sentences in the additional three cases, finding Kansas law required that sentences in Cases 4 and 5 run consecutive to each other and consecutive to Case 3. Dunham appealed claiming district court erred by concluding it lacked discretion to impose the last three sentences concurrently. He also claimed the district court abused its discretion by revoking probation, arguing drug treatment would better address his addiction.

ISSUES: (1) Multiple sentences; (2) probation revocation

HELD: District court erred in finding it had no discretion to impose Dunham’s sentences in Cases 3, 4, and 5 consecutive to each other. Law related to concurrent and consecutive sentencing in felony cases is examined including the interpretation of statutory language, the statutes and caselaw related to concurrent and consecutive sentences, and the application of applicable statutes to facts of Dunham’s case. Dunham had multiple sentences imposed on different cases on the same day, so this case is controlled by State v. Edwards, 252 Kan. 860 (1993), which interpreted the previous version of K.S.A. 2019 Supp. 21-6606(a) as allowing a court flexibility—regardless of sentence ordered in any individual case such as the consecutive prison term in Dunham’s Case 3 sentence—to run the sentences in multiple cases concurrently or consecutively as the court finds appropriate. District court’s order running the sentences consecutively is vacated and case is remanded for court to use its discretion in deciding whether the sentences in Cases 4 and 5 should be consecutive to or concurrent with each other and to Case 3.  

            District court did not act unreasonably by revoking Dunham’s probation. Facts support the district court’s conclusion that Dunham was no longer amenable to probation.    

STATUTES: K.S.A. 2019 Supp. 21-6601, -6604(f)(4), -6606(a), -6606(c), -6606(d), -6606(e); K.S.A. 2018 Supp. 22-3716(c)(8)(A); K.S.A. 2017 Supp. 21-6604(f)(4),  -6606(d); K.S.A. 1996 Supp. 21-4603d, -4720(a); K.S.A. 1992 Supp. 21-4608(1), -4608(3); K.S.A. 1984 Supp. 21-4608, -4608(2), -4608(4), -4608(5); K.S.A. 21-4608(a), -4608(c), 22- 2801, -2802, -2804

Tags:  attorneys  Author: Patti Van Slyke  child support  consumer protections  criminal procedure  Johnson District Court  jurisdiction  municipalities  offender registration  probation  Saline District Court  Sedgwick District Court  sentencing  statutes 

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July 17, 2020 Digests

Posted By Administration, Monday, July 20, 2020

 

Kansas Supreme Court

 

CRIMINAL

 

ATTORNEYS—CONSTITUTIONAL LAW—CRIMINAL PROCEDURE—MENTAL COMPETENCY

STATE V. BURDEN

SUMNER DISTRICT COURT—AFFIRMED; COURT OF APPEALS—AFFIRMED

NO. 116,819 - JULY 17, 2020

 

FACTS: Burden was charged with possession of drugs and drug paraphernalia. District court found she was competent to stand trial pursuant to a court-ordered competency exam and evaluation that found, in part, that Burden had “no significant impairment that is psychiatric in nature.”  District court also allowed Burden to represent herself, and appointed standby counsel. Jury convicted her on drug possession charges, and acquitted on the paraphernalia charge. Burden appealed, arguing district court used an incorrect standard to determine whether she was competent to represent herself. Court of appeals affirmed in unpublished opinion. Review granted.

 

ISSUE: (1) Standard for determining mental competency

 

HELD: Three distinct but related concepts are examined—mental competency to stand trial, the capacity to waive the right to counsel, and mental competency to self-represent. Indiana v. Edwards, 554 U.S. 164 (2008), allows a district court judge to deny a request to waive counsel if a defendant has a severe mental illness. But there is no error when a court does not appoint counsel for a defendant who wishes to exercise the right of self-representation if there is no evidence of the defendant's severe mental illness. Here, the district court did not err in allowing Burden to exercise her constitutional right of self-representation when the record does not establish that she suffers from a severe mental illness.  

 

STATUTE: K.S.A. 22-3301, -3301(1)

 

CRIMINAL PROCEDURE—MOTIONS—STATUTES

STATE V. EDWARDS

SHAWNEE DISTRICT COURT—AFFIRMED

NO. 120,600—JULY 17, 2020

 

FACTS: Jury convicted Edwards in 1996 of first-degree murder, conspiracy to possess with intent to sell hallucinogenic drugs, and aggravated robbery. In 2011, he filed motion for DNA testing of items found at crime scene. District court granted the motion in 2013, and for additional, independent DNA analysis of the evidence. District court held a 2017 hearing and found the DNA results were favorable to Edwards, but denied Edwards’ motion for a new trial because the DNA evidence was “not reasonably probable to lead to a jury reaching a different result.”  Edwards appealed.

 

ISSUE: (1) DNA testing statute

 

HELD: Even when additional DNA testing ordered under K.S.A. 2019 Supp. 21-5212 leads to results favorable to the defense, a district judge does not necessarily abuse his or her discretion by denying a motion for new trial. As in State v. LaPointe, 309 Kan. 299 (2019), the non-DNA evidence against Edwards is strong. District judge did not abuse her discretion by concluding there was no reasonable probability the DNA results would have changed the original trial’s outcome. District judge’s denial of Edwards’ motion for a new trial is affirmed.

 

STATUTE: K.S.A. 2019 Supp. 21-2512, -2512(f)(2)

 

CONSTITUTIONAL LAW—CRIMINAL LAW—EVIDENCE—STATUTES

STATE V. HARRIS

SEDGWICK DISTRICT COURT—REVERSED AND REMANDED; COURT OF APPEALS—REVERSED

NO. 116,515—JULY 17, 2020

 

FACTS: Harris, a convicted felon on parole, was in an altercation when he opened a pocketknife with a 3.5 inch serrated blade for protection, then dropped it when police arrived. State charged him with aggravated assault, criminal possession of a weapon by a convicted felon, and criminal use of a weapon. Harris filed motion to dismiss the possession charge, claiming the statutory definition in K.S.A. 2019 Supp. 21-6304 of a “knife” was unconstitutionally vague on its face and as applied. District court denied the motion. Harris also sought to introduce evidence of parole officer who advised him he could carry a knife less than 4 inches long, and similar info in Kansas Department of Corrections (KDOC) orientation and handbook. Adopting State’s position that parole officers and KDOC staff are not legally authorized to interpret statutes, district court excluded all evidence in support of Harris’ mistake-of-law defense.  Harris appealed, claiming district court erred by rejecting his vagueness challenge to the statute and by excluding all evidence supporting his mistake-of -fact defense. In unpublished opinion Court of Appeals rejected the constitutional challenge, but reversed the trial court’s evidentiary ruling on the mistake-of-fact evidence and remanded for a new trial. Review granted.

 

ISSUES: (1) Constitutionality of K.S.A. 2019 Supp. 21-6304; (2) evidence—mistake of law defense

 

HELD: Case is resolved on a facial challenge to the statute. The residual clause "or any other dangerous or deadly cutting instrument of like character" in K.S.A. 2019 Supp. 21-6304 is unconstitutionally vague because it fails to provide an explicit and objective standard of enforcement. Similar problem in City of Lincoln Center v. Farmway Co-Op, Inc., 298 Kan. 540 (2013)(noise ordinance is unconstitutionally vague). This constitutional failure began with legislative enactment that impermissibly delegated legislative power to the executive and judicial branches.

            Because case is resolved in Harris’ favor on constitutional grounds, the evidentiary issue raised in State’s petition is not reached.

 

DISSENT (Biles, J.)(joined by Rosen, J. and Green, J.): K.S.A. 2019 Supp. 21-6304 is not unconstitutionally vague on its face or as applied to Harris. Majority imposes too strict a standard on Legislature’s ability to formulate criminal laws. Analyzing K.S.A. 2019 Supp. 21-6304(c)(1) in light of the facts, the statute is sufficiently clear to have informed Harris it was unlawful to possess his knife, and the statute is sufficiently clear to stave off any contention that authorities arbitrarily prosecuted him for having it. Photo of Harrisknife is attached. Majority’s reading  of Farmway is criticized.

            Would reverse Harris’ conviction because he is entitled to pursue a mistake-of-law defense. KDOC is legally authorized to interpret the criminal-possession statute, and the KDOC handbook could be read by Harris as containing the agency’s official interpretation of the statute. Trial court’s error in not allowing Harris to pursue a mistake-of-law defense was not harmless in this case.

 

STATUTES: K.S.A. 2019 Supp. 21-5207(b)(4), -6304, -6304(c)(1), -6304(c)(2); K.S.A. 2018 Supp. 21-5207(b)(4); K.S.A. 2016 Supp. 21-5111(aa)(5), -5111(p)(2), 75-5217, -5217(a), -5217(b), -5217(c), -5217(d); K.S.A. 2012 Supp. 21-630; K.S.A. 21-6301, -6304, 75-5201, -5216

 

CONSTITUTIONAL LAW—CRIMINAL PROCEDURE—JURIES—STATUTES

STATE V. HARRISON

JOHNSON DISTRICT COURT—AFFIRMED; COURT OF APPEALS—AFFIRMED

NO. 116,670—JULY 17, 2020

 

FACTS: Jury convicted Harrison of various crimes committed in 2015. During deliberation, judge discussed jury question with Harrison, counsel and prosecutor all present. All agreed to send jury a written response. Harrison appealed on four claims of trial error, including his challenge at not being present when written response was passed to the jury by court staff. In unpublished opinion court of appeals affirmed the convictions, holding in part the district court violated Harrison’s constitutional right to be present at a critical stage in the proceedings by responding to the jury in writing rather than giving the answer in open court with Harrison present, but the error was harmless. Review granted limited to the district court’s failure to have Harrison present when jury received the answer.

 

ISSUE: (1) Response to jury’s question

 

HELD: District court complied with both statutory and constitutional requirements. 2014 revision of K.S.A. 22-3420 allows judges to answer jury questions in open court or in writing. K.S.A. 2019 Supp. 22-3405(a) is analyzed in light of that revision. If a criminal trial judge responds to a jury question in writing by having court personnel deliver the response to the jury in the jury room: the delivery is not a stage of the trial at which a defendant must be present under K.S.A. 2019 Supp. 22-3405(a);  K.S.A. 2019 Supp. 22-3420(d) does not require a defendant’s presence when the jury receives that response; and the defendant’s right to be present during critical stages of the proceedings is not a violation under the Sixth Amendment Confrontation Clause or the Due Process Clause of Fourteenth Amendment. Nothing in the record reasonably suggests Harrison’s presence was essential or critical to a fair and just determination of a substantial issue. Review of panel’s harmless error analysis is unnecessary.

 

STATUTES: K.S.A. 2019 Supp. 22-3405(a), -3420(d); K.S.A. 22-2102, -3405(1), -3420(3)

 

 CRIMINAL PROCEDURE—MOTIONS—POSTCONVICTION RELIEF—STATUTES

STATE V. HILL

OSAGE DISTRICT COURT—AFFIRMED

NO. 119,359—JULY 17, 2020

 

FACTS: Pursuant to amended plea agreement, Hill entered no a contest plea in 2000 to various charges including premeditated first-degree murder. No direct appeal taken. Hill then pursued various post-conviction motions: 2004 motion under K.S.A. 60-1507; 2008 motion to withdraw his no contest pleas; 2014 and 2015 motions including new motion to withdraw pleas and motion to correct illegal sentence. District court denied each motion, and when appealed, the court of appeals affirmed. Present appeal is from district court’s denial of Hill’s 2017 pro se “Motion to Set Aside a Void Judgment Under Due Process of Law and K.S.A. 22-3210.”  The district court construed the motion as one to withdraw pleas under K.S.A. 22-3210, and denied the motion as untimely. District court further found no manifest injustice supported withdrawal of the pleas, found Hill was represented by competent counsel, there was no coercion or unfair advantage taken of Hill, and his pleas were knowingly and understandingly made. Hill appealed, arguing trial court errors, including incorrectly analyzing the motion as one to withdraw plea instead of a motion to void convictions and sentence, denied Hill due process.

 

ISSUE: (1) Due process—motion to correct illegal sentence

 

HELD: Trial judge correctly construed Hill’s various arguments as another effort to withdraw his pleas. Hill’s 2017 motion was filed outside the one year time limitation added to K.S.A. 22-3210 in 2009, and no grounds of excusable neglect for his untimely filing are asserted by Hill or otherwise demonstrated. Hill’s motion is procedurally barred. Trial court’s decision is affirmed.

 

STATUTES: K.S.A. 2019 Supp. 22-3210, -3210(a), -3210(b), -3210(d), -3210(d)(1), -3210(d)(2),  -3210(e)(1), -3210(e)(2); K.S.A. 2017 Supp. 22-3210, -3210(e)(1); K.S.A. 60-1507

 

 

Kansas Court of Appeals

 

CIVIL

 

DUISEARCH AND SEIZURE
CITY OF COLBY V. FOSTER
THOMAS DISTRICT COURT
REVERSED AND REMANDED
NO. 121,373
JULY 17, 2020

 

FACTS: A municipal court convicted Foster of DUI, and Foster appealed to district court. Prior to trial, Foster filed a motion to suppress evidence, including the breathalyzer results. During a hearing on that motion, Foster discovered that law enforcement administered the breath test before providing the implied consent advisories. The district court denied the motion, holding that at the time Foster was arrested, there was no requirement to provide the advisories because Foster was given the breath test incident to arrest. Foster was convicted after a bench trial, and he appealed.

 

ISSUE: (1) Whether the district court erred by denying the motion to suppress

 

HELD: The law in effect at the time of the criminal act controls. Foster was arrested on May 6, 2018, and on that date the amendments to K.S.A. 8-1001 had not yet been enacted. K.S.A. 2017 Supp. 8-1001(k) required that Foster receive notice of his statutory rights. There is not substantial evidence that Foster consented to the search and because he never received the statutory advisory, his consent could not have been knowing or voluntary. Similarly, Kansas law required that Foster be given the consent advisory even if the search of the breath test was done incidental to an arrest. It was not enough for the officer to deliver the implied consent advisories after the breath test had been conducted. That was not substantial compliance. The evidence should have been suppressed.

 

STATUTE: K.S.A. 2017 Supp. 8-1001(a), -1001(b), -1001(k)

 

DUIIMPLIED CONSENT
FISHER V. KANSAS DEPARTMENT OF REVENUE
DOUGLAS DISTRICT COURT
AFFIRMED
NO. 118,830
JULY 17, 2020

 

FACTS: Officer Russell saw Fisher speeding through town. Russell caught up with Fisher, who showed signs of impairment including bloodshot eyes, slurred speech and an unsteady gait. Russell arrested Fisher and gave him the implied consent advisories from the DC-70 form. Fisher refused to take a blood or breath test without an attorney present, so Russell obtained a warrant to draw blood. The test confirmed that Fisher was under the influence, and his driver's license was subsequently suspended. The suspension was affirmed by both the Kansas Department of Revenue and the district court, which found that reasonable grounds existed to require testing. Fisher appealed.

 

ISSUES: (1) Probable cause to arrest; (2) adequacy of implied consent advisory

 

HELD: Russell observed Fisher speeding and running a red light. Russell also had slurred speech and bloodshot eyes, and he smelled strongly of alcohol. Under the totality of the circumstances, there was substantial competent evidence to support the district court's conclusion that Russell had reasonable grounds to believe that Fisher was driving under the influence. The DC-70 form given to Fisher did not tell him that he had a constitutional right to refuse to submit to the test. An arresting officer must substantially comply with statutory notice provisions. In this case, Russell substantially complied by providing the implied consent notices from the revised DC-70 form. Fisher is correct that a driver is not required to consent to a requested test. But the use of the word "requires" in the statute is not by itself unduly coercive. The text, when read in its entirety, clearly informs drivers that they have the right to refuse testing.

 

STATUTES: K.S.A. 2016 Supp. 8-1001(a), -1001(k), -1020(q); K.S.A. 2014 Supp. 8-1025

 

DUIEXCLUSIONARY RULE
JOHNSON V. KANSAS DEPARTMENT OF REVENUE
COWLEY DISTRICT COURT
AFFIRMED
NO. 119,151
JULY 17, 2020

 

FACTS: Trooper LaVelle responded to reports of a one-vehicle accident. He waited on the scene while EMS treated Johnson, the driver. As EMS was walking Johnson to his car, LaVelle noticed that Johnson was swaying as he walked. EMS told LaVelle that Johnson had given the wrong birth date while in the ambulance, and they noticed that he smelled strongly of alcohol. LaVelle noticed the same thing, along with bloodshot eyes. Johnson failed the field sobriety tests that he performed. As a result. LaVelle arrested Johnson and gave him a copy of the DC-70 form before asking him to submit to an evidentiary breath test. Johnson agreed to the breath test, which revealed that his breath alcohol level was over the legal limit. Johnson received the DC-27 form and his driver's license was suspended. The Kansas Department of Revenue affirmed the suspension, so Johnson sought judicial review. The district court found that the encounter between LaVelle and Johnson was appropriate, and Johnson appealed.

 

ISSUES: (1) Reasonable grounds to request a breath test; (2) due process violation

 

HELD: In order to request an evidentiary breath test, LaVelle needed to have reasonable grounds to believe that Johnson was driving under the influence and Johnson had to be under arrest, in custody, or involved in a car accident. In this case, Johnson was in an accident which damaged property. There was also probable cause that Johnson was driving under the influence, and the district court reviewed the evidence under the correct standard. The district court's decision was supported by substantial competent evidence, and the appellate court will not reweigh the evidence. It is undisputed that some of the information contained in the implied consent advisory was later declared unconstitutional. But criminal DUI law does not apply herespecifically, the exclusionary rule has no application in an administrative license proceeding. And even if it did, the good faith exception would apply here. Johnson failed to prove that he suffered a violation of his procedural due process rights. And any substantive due process analysis must be specifically analyzed under the Fourth Amendment. Johnson could not prove that he suffered a substantive due process injury under the Fourth Amendment.

 

STATUTES: K.S.A. 2015 Supp. 8-1001, -1002(a); K.S.A. 77-621(a)(1), -621(c)

 

IMPLIED CONSENT—JURISDICTION
SANDATE V. KANSAS DEPARTMENT OF REVENUE
JOHNSON DISTRICT COURT—AFFIRMED
NO. 119,514—JULY 17, 2020

 

FACTS: Officer Jordan was driving behind Sandate and noticed that he was not maintaining a lane or signaling lane changes. Jordan initiated a traffic stop and arrested Sandate, who admitted to consuming alcohol, showed signs of impairment, failed field sobriety tests and refused a preliminary breath test. Jordan gave Sandate the appropriate DC-70 form when requesting the test and the appropriate DC-27 form after the refusal. The Kansas Department of Revenue affirmed the suspension, as did the district court after Sandate requested judicial review. Sandate appealed.

 

ISSUES: (1) Subject matter jurisdiction; (2) substantial compliance of the DC-70 form; (3) use of the word "require"

 

HELD: Although other panels of the court of appeals have found otherwise, the district court did have subject matter jurisdiction. Any given court of appeals panel is not bound by another panel's decision. Each panel conducts an independent analysis and comes to its own conclusion. The DC-27 form has two components: notification and certification. It acts like a charging document and charging documents do not bestow or confer subject matter jurisdiction and defects in a complaint do not deprive a court of power to hear the case. KDOR had jurisdiction to suspend Sandate's driver's license. Sandate did not properly preserve for review part of his argument. The evidence before the district court shows that Jordan substantially complied with K.S.A. 2016 Supp. 8-1001(k), and Kansas has never required strict compliance. Although the DC-70 uses the word "require", it is not coercive.

 

STATUTES: K.S.A. 2019 Supp. 8-259, -1001(k), -1002, -1002(a), -1020; K.S.A. 2016 Supp. 8-1001(k), -1002(a), -1002(f)

 

 

Tags:  attorneys  constitutional law  criminal law  criminal procedure  DUI  evidence  exclusionary rule  implied consent  juries  jurisdiction  mental competency  motions  postconviction relief  search and seizure  Sedgwick District Court  Shawnee District Court  statutes  Sumner District Court 

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July 10, 2020 Digests

Posted By Administration, Monday, July 13, 2020

Kansas Supreme Court

Civil

ADOPTION
IN RE ADOPTION OF BABY GIRL G.
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED, CASE REMANDED
NO. 121,051—JULY 10, 2020

FACTS: Baby Girl G. was born in 2018. The day after her birth the natural mother signed a consent to adoption and relinquished her parental rights. In that consent form, she named two men as possible fathers. The adoptive parents filed actions in district court seeking to terminate the parental rights of natural mother and both men named as possible fathers. A month later, Father filed a voluntary acknowledgement of paternity and indicated his intent to contest the adoption. After an evidentiary hearing, the district court found that Father failed to provide meaningful support to natural mother during the final six months of her pregnancy. The district court also found that Father was unfit on several grounds, but it elected not to use them as a basis for termination. Father's parental rights were terminated. The court of appeals affirmed that ruling but reversed the award of attorney fees and remanded the case to district court for further consideration of that issue. Father's petition for review was granted.

ISSUES: (1) Constitutionality of K.S.A. 2019 Supp. 59-2136(h)(1)(D); (2) whether there was adequate evidence of a failure to support;

HELD: The court declines to address the constitutional issue because it was not raised before the district court or court of appeals. It is not sufficient to raise a new issue for the first time in a petition for review, and counsel presented inconsistent arguments to the appellate courts. There was sufficient evidence to support the district court's decision that Father failed to support the natural mother during the last six months of her pregnancy. Father's non-financial support was minimal and of little value to the mother and his financial support was inconsequential.

DISSENT: (Stegall, J.) Justice Stegall would consider the merits of Father's constitutional claim in order to serve the ends of justice. Preservation is a prudential rule rather than a jurisdictional bar and it can be waived if justice requires. The disparate treatment for unwed biological fathers in adoption cases is troubling.

STATUTE: K.S.A. 2019 Supp. 59-2136, -2136(h), -2136(h)(1)

JURISDICTION—TAXATION
IN RE EQUALIZATION APPEALS OF TARGET CORPORATION
BOARD OF TAX APPEALS—COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART, CASE REMANDED TO THE COURT OF APPEALS
NO. 119,228 – JULY 10, 2020

 FACTS: Target is one of several commercial real estate owners in Johnson County which appeals the County's ad valorem tax valuation for the 2016 tax year on seven commercial properties. After an evidentiary hearing, the Board of Tax Appeals issued a summary decision ordering lower values for each property. The Taxpayers promptly requested a full and complete written opinion. Five weeks later, the Taxpayers confirmed that the County did not request a full and complete written opinion and subsequently withdrew their request. The County objected, asking BOTA to issue a full and complete written opinion regardless of the withdrawal. The County noted that it didn't learn of the withdrawal until it was too late to file its own request. In the alternative, the County asked that BOTA consider the objection as a request for reconsideration of the summary decision. BOTA denied both requests and the County appealed. The court of appeals dismissed the appeal for lack of jurisdiction and the petition for review was granted.

ISSUES: (1) Jurisdiction; (2) scope of review

HELD: The Kansas Judicial Review Act provides the exclusive means for judicial review of agency action. There is not a final order in this case because there is no full and complete written opinion and the Taxpayers did not seek a trial de novo in district court. The KJRA does allow for limited review of nonfinal agency actions if certain conditions are met. BOTA's failure to issue a full and complete written opinion is properly considered a nonfinal agency decision. K.S.A. 77-631(a) allows for an appeal from an agency's failure to act in a timely manner. The County was an aggrieved party, as that term is used in K.S.A. 74-2426(c). BOTA's refusal to issue the full and complete written opinion was an order and is appealable on an interlocutory basis. The case is remanded to the court of appeals for further consideration of whether BOTA acted properly in failing to issue a full and complete opinion. Because there has not been a final decision the court of appeals cannot yet address the merits of the County's argument.

criminal

appellate procedure—criminal procedure—evidence
state v. brazzle
riley district court—affirmed; court of appeals—affirmed
no. 116,649—july 10, 2020

FACTS: Following car stop and subsequent discovery of drugs, Brazzle was convicted of drug-related crimes including possession of methamphetamine with intent to distribute and possession of oxycodone. During trial, district court found the State’s prior crime evidence of Brazzle’s sale of methamphetamine to undercover detective was admissible to show whether Brazzle intended to distribute the methamphetamine found in the car. On appeal, Brazzle claimed: (1) district court erred in admitting K.S.A. 60-455 evidence related to the prior methamphetamine sales; (2) jury instruction on possession of oxycodone did not require jury to find that he illegally possessed the drug without a prescription; and (3) insufficient evidence supported his conviction for possession of oxycodone. Court of appeals affirmed, finding in part that Brazzle could not claim instructional error on appeal because he advocated for the version of the instruction given to the jury. 54 Kan.App.2d 276 (2018). Review granted.

ISSUES: (1) Evidence of prior crimes; (2) invited error; (3) sufficiency of the evidence

HELD: District court did not err in admitting prior crimes evidence under K.S.A. 60-455. Caselaw on evidence of intent for simple possession is distinguished from possession with intent to distribute. If a defendant argues he or she lacked the intent to distribute drugs, evidence about a prior crime committed by the defendant may be material, especially if evidence establishes similarities between the prior crime and the charged crime. Under facts in this case the prior crimes evidence was material to and probative of Brazzle’s intent to distribute, and the risk for undue prejudice did not substantially outweigh the probative value.  

            By failing to argue in his petition for review why the court of appeals erred in its invited error analysis, Brazzle waived any argument he might have as to why the invited error doctrine did not apply to his claim of instructional error.

            Sufficient evidence supports Brazzle’s possession of oxycodone conviction. There was circumstantial evidence that oxycodone was part of Brazzle’s illicit drug inventory, and jury could infer Brazzle would not put his own prescription medication in same bag containing drugs that he intended to distribute. Officer’s testimony comparing the appearance of Brazzle’s pills to an image of a pill identified as oxycodone on drugs.com was sufficient. Brazzle did not object to officer’s testimony regarding how he identified the pills found in the car, and did not object to the pills being entered into evidence. Brazzle cannot recast an evidentiary ruling as a sufficiency argument.

STATUTES: K.S.A. 2019 Supp. 60-455; K.S.A. 2015 Supp. 21-5702(b), -5705(e)(2), -5706(a), 65-4116(c)(3); K.S.A. 60-404, -455 Civil 

criminal procedure—juries—motions—statutes
state v. carter
sedgwick district court—affirmed
no. 119,315—july 10, 2020

FACTS: State filed charges against Carter arising from Carter hitting and threatening a victim (Crowe) in November 2015, and arising from a December 2015 shooting that resulted in the death of two other victims. District court granted State’s motion to consolidate the charges, finding the charges were connected. Jury convicted Carter of first-degree felony murder, criminal discharge of a firearm, aggravated battery, and criminal threat. On appeal, he claimed district court erroneously refused to add language to the aiding and abetting instructing that “mere presence” alone does not establish mental culpability to convict under aiding and abetting, citing State v. Llamas,  298 Kan. 246 (2013), and the “better practice” recommendation in State v. Hilt,  2999 Kan. 176 (2014), to give such language. Carter also claimed the district court erred in consolidating the charges.

ISSUE: (1) Jury instruction—aiding and abetting; (2) motion to consolidate

HELD: Court rejects Carter’s argument for converting “better practice” into a legal requirement that “mere presence” language must be included in cases where a defendant is charged under an aiding and abetting theory and requests the instruction. While there was a modicum of evidence that Carter’s requested instruction was factually appropriate, any possible error in failing to give the requested instruction was harmless given the weight of evidence supporting Carter’s guilt.

            District court’s decision to consolidate the charges is affirmed. Cases involving consolidation decisions are discussed. In this case, Carter’s battery of Crowe precipitated the factual setting which led to Carter’s participation in the shooting.  District court correctly found a statutory condition for consolidation was met, and did not abuse its discretion in allowing consolidation.    

STATUTES: K.S.A. 2019 Supp. 60-261; K.S.A. 22-3202, -3202(1), -3202(3), -3203,

 

Kansas Court of Appeals

  CRIMINAL

criminal procedure—evidence—juries—motions—sentencing
state v. williams
sedgwick district court—affirmed in part, reversed in part, remanded
no. 120,768—july 10, 2020

FACTS: Jury convicted Williams of rape of 13-year old girl. During trial State introduced DNA results of one of multiple swabs taken from victim. Sentencing court imposed concurrent hard-25 life sentences, but journal entry also stated that Williams was subject to lifetime postrelease supervision for each crime. Williams filed pre-sentence motion for postconviction DNA testing of all swabs. District court summarily denied both that motion and Williams’ post-sentencing motion for reconsideration, stating only that the motion was unripe and K.S.A. 2019 Supp. 21-2512(a) did not apply. Williams appealed claiming: (1) district court erred by allowing State to exercise a peremptory strike in the midst of jury selection and prior to defense questioning of the jury panel; (2) verdict form which placed the line for finding the defendant “guilty” above “not guilty” infringed the presumption of innocence; (3) cumulative effect of these two errors denied him a fair trial; (4) journal entry of sentencing erroneously included lifetime postrelease supervision; and (5) district court erred by summarily denying his motions for postconviction DNA testing. 

ISSUES: (1) Peremptory challenge; (2) verdict form; (3) cumulative error; (4) sentencing; (5)  postconviction motion for DNA testing

HELD: Timing of State’s peremptory challenge, though unusual, was not improper and did not violate Williams’ right to a fair trial. Each party voluntarily used one peremptory challenge before the State passed the jury for cause, and used their remaining peremptory challenges after Williams approved the jury. This did not violate Kansas case law or K.S.A. 22-3411a.

            Wording of the verdict form did not violate Williams’ presumption of innocence. Kansas Supreme Court cases have rejected William’s position.

            No errors shown for application of cumulative error doctrine.

            Williams’ convictions are affirmed but case is remanded to district court for correction of error in the sentencing journal entry. A sentencing court cannot order lifetime postrelease supervision when a person has been convicted of an off-grid crime. And the journal entry erroneously recorded the effective sentence announced from the bench.

            Because district court did not rule on Williams’ motion until after pronouncing sentence, the motion was not “unripe.” District court’s summary denial of the request for postconviction DNA testing is reversed. Case is remanded so district court can articulate its findings and conclusions under the procedure outlined by Kansas statutes and Kansas Supreme Court caselaw.        

STATUTES: K.S.A. 2019 Supp. 21-2512, -2512(a), -2512(a)(1)-(3), -2512(c); K.S.A. 22-3411a

 

 

 

 

 

Tags:  adoption  appellate procedure  board of tax appeals  criminal procedure  evidence  juries  jurisdiction  motions  procedures  Riley District Court  Sedgwick District Court  sentencing  statutes  taxation 

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June 19, 2020 Digests

Posted By Administration, Monday, June 22, 2020

Kansas Supreme Court

criminal

appeals—appellate procedure—criminal procedure—motions—sentencing
state v. mayes
johnson district court
court of appeals—dismissal of appeal is affirmed
no. 115,006—june 19, 2020

FACTS: Mayes appealed from district court’s denial of Mayes’ motion to correct an illegal sentence. State moved to dismiss the appeal as moot because Mayes had been released from prison. Court of Appeals in unpublished motion granted State’s motion and dismissed the appeal without reaching merits of Mayes’ illegal sentence claim. Mayes’s petition for review granted. In his petition, he argued in part his appeal was not moot because a corrected criminal history score will affect when he can legally possess a firearm.

ISSUE: (1) Mootness Doctrineexpiration of sentence

HELD: Court of appeals erroneously applied sweeping bright-line rule rejected in State v. Roat, 311 Kan. __ (this day decided), but dismissal of the appeal is affirmed. Mayes failed to preserve below his argument that his appeal was not moot because a decision regarding whether his sentence was illegal will affect when he can legally possess a firearm.

STATUTE: K.S.A. 2010 Supp. 21-3701, -3716

appeals—attorneys and clients—constitutional law—
criminal procedure—jurisdiction—motions—sentencing
state v. roat
sedgwick district court
court of appeals—dismissal of appeal is affirmed
no. 113,531—june 19, 2020

FACTS: Roat was sentenced in 2009 and 2012 using criminal history that classified his 1984 Kansas burglary conviction as a person felony. Alleging classification error in light of State v. Murdock, 299 Kan. 312 (2014), and State v. Dickey, 301 Kan. 1018 (2015), Roat filed motion to correct an illegal sentence, and appealed the district court’s denial of relief. While appeal was pending, State filed notice that Roat had satisfied both the prison and post-release supervision provisions of his sentences. Court of Appeals then ordered Roat to show cause why the appeal should not be dismissed as moot. Roat argued his sentence could impact future sentences, and he might want to pursue a legal malpractice claim against trial attorney for not raising Murdock and Dickey issues at sentencing. Court of Appeals dismissed the appeal in unpublished opinion, holding the expiration of Roat’s sentence meant the outcome of the appeal would have no effect on his sentence in this case. Roat’s petition for review granted.

ISSUE: (1) Mootness Doctrineexpiration of sentence

HELD: Historical basis and application of the mootness doctrine is examined, including Kansas cases approaching mootness as jurisdictional or as discretional policy-based, and the constitutional, jurisdictional concept of mootness in federal cases. Consideration of mootness as a prudential doctrine is held to be the better approach. Bright line rule that renders a sentencing appeal necessarily moot if the sentence is completed is rejected. Instead, a determination of mootness must include an analysis of whether an appellate judgment on the merits would have meaningful consequences for any purpose, including future implications. In this case, State established a prima facie showing of mootness by demonstrating that Roat had fully completed the terms and conditions of his sentence, but Roat failed to demonstrate a vital or substantial right requiring a judgment in this appeal. A legal malpractice claim cannot be grounded on an attorney’s failure to make arguments for a change in the law, even if such a change later takes place, and mere stigma or “rightness” is insufficient to justify continuing to exercise jurisdiction over an appeal. Panel’s summary dismissal of the appeal without application of well-established principle in State v. Montgomery, 295 Kan. 837 (2012), and no reference to Roat’s asserted collateral rights, was erroneous but it arrived at the correct conclusion. Judgment of court of appeals is affirmed, subject to identified reservations. Court notes the 2019 amendment of K.S.A. 22-3504 does not directly invoke or demonstrate mootness of motions, such as Roat’s, that were filed before the amendment.

CONCURRENCE (Biles, J.): Concurs in the result based on rationale stated in State v. Tracy, 311 Kan. __ (this day decided).

CONCURRENCE (Stegall, J.): Joins Justice Biles’ concurrence, but states disagreement with portion of majority opinion that appear to abandon or weaken the constitutional requirement that Kansas courts decide only cases and controversies. Suggests standing (rather than mootness) is the better legal doctrine for future courts to focus on.

STATUTES: K.S.A. 2019 Supp. 22-3504(a), -3504(d), 60-2102(a); K.S.A. 2018 Supp. 21-6813, -6814; K.S.A. 22-3504

appeals—appellate procedure—attorneys and clients—motions
state v. sykes
sedgwick district court
court of appeals—dismissal of appeal is affirmed
no. 113,903—june 19, 2020

FACTS: Sykes appealed the district court’s denial of his motion to correct an illegal sentence based on calculation of Sykes’s criminal history. State moved to dismiss the appeal as moot because Sykes had completed his sentence. Sykes filed no response. Court of appeals granted State’s motion and dismissed the appeal. Sykes petitioned for review, arguing his appeal was not moot because a hypothetical future sentencing court might take judicial notice of Sykes’s criminal history score, and a successful appeal might preserve a legal malpractice claim against his trial counsel.

ISSUE: Mootness doctrineexpiration of sentence

HELD: Panel erred to the extent it considered Sykes’ claim moot based solely on the completion of his sentence, but dismissal of the appeal is affirmed because Sykes failed to challenge the State’s motion for involuntary dismissal of the case as moot.

STATUTES: None

appeals—attorneys and clients—criminal procedure—motions—sentencing
state v. tracy
sedgwick district court
COURT OF APPEALS—dismissal of appeal is affirmed
no. 113,763—june 19, 2020

FACTS: District court revoked Tracy’s probation and denied motion to correct an illegal sentence in which Tracy challenged the classification of his 1974 Colorado burglary conviction as a person offense. In unpublished opinion Court of Appeals held the Colorado conviction was properly classified. Tracy’s petition for review granted but held in abeyance pending resolution of other appeals with related issues. After Tracy fully served his prison sentence and applicable period of postrelease supervision, State argued Tracy’s appeal was moot.

ISSUE: Mootness doctrineexpiration of sentence

HELD: The appeal is moot. No merit to Tracy’s speculative claim that a future sentencing court will feel obligated to follow the panel’s uncorrected ruling and again classify the 1974 Colorado conviction as a person felony. By failing to provide any detail about what he might assert as a basis for the alleged legal malpractice he might want to file, Tracy waived this argument. And under current Kansas caselaw, no merit to Tracy’s claim that the uncorrected panel’s decision could have an impact on other defendants in other cases.

CONCURRENCE (Rosen, J.)(joined by Nuss, C.J. and Malone, J.): Concurs in the result based on rationale expressed in State v. Roat, 311 Kan. __ (this day decided).

STATUTE: K.S.A. 2019 Supp. 21-6813, -6814(c)

appeals—criminal procedure—motions—postconviction relief—sentencing
state v. ward
franklin district court
court of appeals—dismissal of appeal is reversed, case remanded
no. 116,545—june 19, 2020

FACTS: Ward filed motion to correct an illegal sentence, and under K.S.A. 60-1507 to allege district court erred when it revoked Ward’s probation and imposed the underlying sentence. District court summarily denied the motion. Noting that Ward had completed his sentence, Court of Appeals ordered Ward to show cause why the case should not be dismissed as moot under State v. Montgomery, 295 Kan. 837 (2012). In response Ward argued in part that a finding he violated the terms of his probation could be used to deny him probation or subject him to a future upward departure sentence. Panel dismissed the appeal as moot in an unpublished opinion. Ward’s petition for review of panel’s dismissal granted.

ISSUE: (1) Mootness Doctrine—expiration of sentence

HELD: Ward correctly distinguishes Montgomery because he challenges the probation revocation, not just the sanction. Case is remanded to Court of Appeals to reconsider under guidance provided in State v. Roat, 311 Kan. __ (this day decided), the arguments Ward presented in his response to the show cause order.

DISSENT (Biles, J.)(joined by Luckert, C.J. and Stegall, J.): Dissents from remand order based on rationale expressed in State v. Tracy, 311 Kan. __ (this day decided). Case should be dismissed.

STATUTE: K.S.A. 60-1507

appeals—criminal procedure—evidence—sentencing
state v. Yazell
johnson district court
court of appeals—dismissal of appeal is reversed, case is remanded
no. 116,761—june 19, 2020

FACTS: Yazell appealed from revocation of probation following his out-of-state arrest. When State submitted evidence from Kansas Adult Supervised Population Electronic Repository (KASPER) showing Yazell had been released from custody, court of appeals ordered Yazell to show cause why the appeal should not be dismissed as moot. In response Yazell challenged the evidence the State submitted to the appellate courts to show Yazell had competed his sentence, and argued his case was not moot because a finding he violated probation could be used as evidence he is not amenable to probation in future cases. Court of appeals summarily dismissed the appeal as moot. Yazell’s petition for review granted.

ISSUES: (1) Appellate factual findings; (2) mootness doctrineexpiration of sentence

HELD: The reasoned approach by Kansas appellate courts to date has been to reject basing appellate decisions on KASPER and similar documentation. Because KASPER is unreliable evidence, courts may not rely on it to make factual findings. Court of appeals erred to the extent it relied on KASPER and State’s hearsay assertions about a Corrections employee confirming the accuracy of the KASPER report. Panel’s decision is reversed and case is remanded to court of appeals.

            If panel on remand should again find that Yazell has completed his sentence, it should reconsider whether his case is moot under guidance provided in State v. Roat, 311 Kan. __ (this day decided).

STATUTE: K.S.A. 60-409(a)

 

Kansas Court of Appeals

Civil

FAMILY SETTLEMENT AGREEMENT
SCHMITENDORF V. TAYLOR
DOUGLAS DISTRICT COURT—AFFIRMED
NO. 120,123—JUNE 19, 2020

FACTS: Schmitendorf and Taylor were both cousins of Vera Park. In 1993, Park created a revocable trust, designating Park as the trustee. In the event of Park's death, Schmitendorf was to receive 20 percent of the trust estate unless the primary beneficiary predeceased Park, in which case Schmitendorf would receive all the trust estate. After the primary beneficiary died, Park amended the trust so that Schmitendorf and Taylor would evenly split the trust assets. Schmitendorf remained the sole trustee; in that capacity, she used trust assets to purchase a home and made a substantial gift to a community group to establish an endowment in Park's name. Taylor was concerned about Schmitendorf's use of trust assets, and a protracted dispute arose over the trust, a guardian for Park, and alleged financial misappropriation. Ultimately, Schmitendorf and Taylor agreed on terms for a Family Settlement Agreement. The district court approved the Family Settlement Agreement and appointed Schmitendorf and Taylor as co-guardians for Park. Park died in 2016 and Schmitendorf filed a petition contesting the amendment to the trust which established Taylor as a co-equal beneficiary. Taylor sought summary judgment, claiming that all Schmitendorf's claims were controlled by the Family Settlement Agreement. The district court agreed, and Schmitendorf appealed.

ISSUE: (1) Whether dispute is controlled by Family Settlement Agreement

HELD: Kansas law favors the settlement of disputes and family settlement agreements are liberally construed and should not be disturbed without good reason. The plain language of this Family Settlement Agreement clearly determines the parties' interests and their intent to settle all disputes relating to the distribution of trust assets. Under the plain language of the Family Settlement Agreement, Schmitendorf is barred from asserting any claims for relief.

STATUTES: K.S.A. 2019 Supp. 60-256(c)(2); K.S.A. 59-102(8)

Tags:  appeals  appellate procedure  attorneys and clients  constitutional law  criminal procedure  Douglas District Court  Family Settlement Agreement  Franklin District Court  Johnson District Court  jurisdiction  motions  post-conviction relief  Sedgwick District Court  sentencing 

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June 5, 2020 Digests

Posted By Administration, Tuesday, June 9, 2020

Kansas Supreme Court

 

Civil

TRUSTS
IN RE ST. CLAIR TRUST REFORMATION
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 120,050—JUNE 5, 2020

FACTS: Jill St. Clair executed a trust agreement in September 2003. St. Clair's husband, William, was named a life beneficiary of the trust's income. Upon his death, the trust's income would be distributed to Jill and William's children and grandchildren, with the principal eventually being distributed to the grandchildren or their estates. William had previously created his own trust with an identical distribution scheme. Both trusts were funded with identical amounts, and both trusts were prepared by the same attorney. Mr. Davidson drafted the trusts to make sure that the trust assets were not included in either William or Jill's taxable estates. At the time the trust was executed, Jill believed it contained the necessary provisions for the trust assets to be excluded from both taxable estates. Unfortunately, the trust contained a drafting error which resulted in the trusts becoming reciprocal, with the assets of Jill's trust being included in William's estate upon his demise, and vice versa. The trust as written did not accurately express Jill's intent. In order to correct the drafting error, Jill and her trustee petitioned the district court for an order reforming Jill's trust to include provisions which would prevent the trusts from becoming reciprocal. The proposed amendment was served on all beneficiaries, with no objection. The district court ordered that the trust be reformed to correct the scrivener's error.

ISSUE: (1) Whether trust should have been reformed

HELD: The district court's decision was appealed in order to satisfy the requirements of Commissioner v. Estate of Bosch, and the case was transferred from the Kansas Court of Appeals. The record on appeal shows that Jill and the trustee demonstrated by clear and convincing evidence that Jill's intent in creating and funding the trust was adversely affected by a drafting error, making it necessary to reform the trust. Reformation destroys the economic symmetry of the trusts, allowing the trust to be consistent with Jill's original intent. The reformation is affirmed.

STATUTES: K.S.A. 2018 Supp. 20-3017; K.S.A. 58a-415

criminal

appeals—criminal procedure—evidence—juries—verdicts
state v. brown
cowley district court—affirmed; court of appeals—reversed
no. 115,817—june 5, 2020

FACTS: State charged Brown with attempted second-degree intentional murder. District court instructed jury on that charge and the lesser offense of attempted voluntary manslaughter. Verdict form returned by the jury, however, found “the defendant guilty of the lesser offense of attempted involuntary manslaughter as set forth in Instruction No. 7,” an instruction that referred to the correct crime of attempted voluntary manslaughter. This verdict inconsistency was not caught until sentencing, well after jury was discharged. District court sentenced Brown for the instructed crime, attempted voluntary manslaughter. Brown appealed. In unpublished opinion, Court of Appeals reversed and remanded for a new trial on that count, holding the written language of the verdict controlled and district court was powerless to deviate from its literal meaning. Panel in a strikingly similar case held the district court could reasonably interpret the verdict in light of the record. State v. Rice, (2011)(unpublished opinion). State’s petition for review granted to resolve this panel split.

ISSUE: Ambiguous verdict

HELD: Based on Kansas caselaw and persuasive decisions from other jurisdictions, general approach in Rice is correct. Lower court’s decision is reversed with caution. An ambiguous verdict can be reasonably interpreted in light of the charging document, jury instructions, and record as a whole to determine and give effect to jury’s intent. When such intent is clear, a mistaken description of the crime of conviction contained in the verdict form may be discarded as surplusage when the verdict form also refers to the correct charge by pointing back to the charging document or the jury instruction. The strong presumption in favor of the literal text of the jury verdict as the surest guide to jury’s intentions can only be overcome when the record as a whole clearly demonstrates a different intent and district court is convinced beyond a reasonable doubt that portions of the verdict text are inconsistent with that intent. An appellate court’s review of a district court’s application of the surplusage rule is de novo. In this case, district court did not err when it discarded the “in-“ prefix from the verdict form as mere surplusage.

STATUTE: K.S.A. 22-3421

criminal procedure—evidence—motions
state v. hachmeister
shawnee district court—affirmed
no. 114,796—june 5, 2020

FACTS: Hachmeister was convicted of premeditated murder for killing his mother. On appeal he claimed the district court abused its discretion by admitting evidence under K.S.A. 60-455 of mother thinking that Hachmeister had stolen her wedding ring, and of child pornography found on Hachmeister’s computer and the charges associated with that possession.  He also claimed eight instances of error during prosecutor’s closing argument.

ISSUES: (1) K.S.A. 60-455 evidence; (2) prosecutorial error

HELD: No error in district court’s admission of the 60-455 evidence. Probative value of the wedding ring evidence substantially outweighed any prejudice where the confrontation surrounding the missing wedding ring was key evidence of motive. And evidence of child pornography on Hachmeister’s computer and charges for possessing this porn was extremely probative in identifying Hachmeister as author of anonymous letters written by the “real killer.”

            Each allegation of prosecutorial error is examined finding only one error. Prosecutor’s comment that victim “could breathe just fine” exceeded the prosecutor’s ability to draw inferences from the evidence. This error was harmless in light of the trial as a whole and the overwhelming evidence against Hachmeister..

STATUTES: K.S.A. 2019 Supp. 60-455(b)

Tags:  appeals  Cowley District Court  criminal procedure  evidence  juries  motions  Sedgwick District Court  Shawnee District Court  verdicts 

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May 15, 2020 Digests

Posted By Administration, Monday, May 18, 2020

Kansas Supreme Court

 

CRIMINAL 

 

CRIMINAL PROCEDURE—EVIDENCE—JURY INSTRUCTIONS

STATE V. MORRIS

SEDGWICK DISTRICT COURT—AFFIRMED

NO. 119,911—MAY 15, 2020

 

FACTS: Jury convicted Morris of charges including both first-degree premeditated murder and alternative charge of first-degree felony murder, aggravated kidnapping, and aggravated battery. On appeal, he claimed district court erred in refusing to give a requested instruction on  voluntary intoxication, and in admitting gruesome photographs of victim’s partially decomposed body that had been exposed to damage from animals. Morris also claimed cumulative error denied him a fair trial.

 

ISSUES: (1) Jury instructions—voluntary intoxication; (2) gruesome photographs; (3) cumulative error

 

HELD: District court did not err in denying Morris’ request for a voluntary intoxication instruction. While the requested instruction would have been a legally available defense to Morris’ first-degree murder charge and conviction, such an instruction was factually inappropriate because insufficient evidence supported that defense in this case.

            District court did not abuse its discretion in admitting photographs of victim’s body. Because Morrisargument clearly fails on the merits, no need to determine State’s argument that Morris failed to properly preserve this issue by failing to lodge a specific objection to the 12 photographs admitted. A few of the admitted photographs may have been repetitive, and many may have been gruesome, but they were relevant and admissible to show the manner and violent nature of victim’s death and to corroborate testimonies of witnesses having credibility issues.   

            No error supports Morris’ claim of cumulative error, and evidence against Morris was overwhelming.

 

STATUTES: K.S.A. 2016 Supp. 21-5205(b), -5408, -5413; K.S.A. 60-401(b), -404, -445

 

 

Kansas Court of Appeals

 

CIVIL

 

ATTORNEY FEES—JURY TRIAL—REMEDY
HARDER V. ESTATE OF FOSTER
LEAVENWORTH DISTRICT COURT—AFFIRMED AND REMANDED
NO. 118,845—MAY 15, 2020

 

FACTS: The case arises out of a real estate dispute between Evelyn Harder and Ronald Foster. In 2013, a jury found Foster guilty of negligent misrepresentation, intentional misrepresentation, and breach of contract. The real estate contract included a provision which required a party who breached the contract to pay attorney fees that the nonbreaching party incurred in connection with the default. The district court awarded Harder fees for the initial litigation but denied her motion for fees incurred while attempting to finalize the decision and journal entry. After this trial, Harder filed a second suit against Foster and his children, claiming that Foster fraudulently transferred all proceeds from the property sale to his family members, leaving him unable to pay Harder's judgment. Foster died during this litigation. His estate paid the judgment in full and the district court dismissed the action on summary judgment, finding that the payment extinguished any of Harder's claims. Harder's motion for attorney fees and costs was denied. These decisions were upheld on appeal except the panel determined the district court erred by denying Harder's motions for attorney fees and expenses in the 2013 case. The panel remanded the 2015 case to allow the district court to determine whether Harder could prove an exception to the American rule which requires parties to bear their own litigation costs unless a statute or contract expressly authorizes such an award. The district court's factfinding was limited to Harder's third-party claims. On remand, Harder claimed that she had a right to have a jury decide attorney fees and expenses for both the 2013 and 2015 cases. The district court disagreed, and the Court of Appeals granted Harder's application for an interlocutory appeal.

 

ISSUES: (1) Jury trial for attorney fees; (2) fees for 2013 case; (3) fees for 2015 case

 

HELD: The right to a jury trial in a civil action is not absolute. It is only guaranteed if such a right existed at common law at the time the Kansas constitution was adopted in 1859. There was no right to recover attorney fees at common law, and Kansas follows the American rule where fees are not awarded unless there is a statute or contractual provision so requiring. Kansas does recognize the third-party litigation exception to the American rule, but that exception did not exist in 1859. Accordingly, there is no right under the Kansas constitution to have a jury determine attorney fees and expenses. The 2013 judgment has been satisfied in full. Harder voluntarily chose not to present her attorney fees claim to the jury; her attorney expressly asked the trial court to resolve the matter, arguing in a pleading that the question of fees and expenses arising out of the real estate contract was not a jury decision. The error Harder now claims was invited by her counsel before the district court, and she is not entitled to relief. The prior decision on the 2015 case is upheld. Harder is not entitled to have a jury decide whether an exception to the American rule exists which would allow her to recover attorney fees for third-party conduct.

Tags:  attorney fees  criminal procedure  evidence  jury instructions  jury trial  Leavenworth District Court  remedy  Sedgwick District Court 

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April 24, 2020 Digests

Posted By Administration, Monday, April 27, 2020

Kansas Supreme Court

criminal

appeals—criminal procedure—immunities—statutes
state v. collins
sedgwick district court—reversed and remanded; court of appeals—affirmed
no. 117,743—April 24, 2020

FACTS: Wielding a knife in an altercation with three unarmed women, Collins killed one and injured a second. Collins filed motion to dismiss the complaint, claiming self-defense immunity. District court granted the motion and dismissed charges of second-degree murder and reckless aggravated battery, ruling Collins had reasonable grounds to believe he was in danger of great bodily harm. Court of Appeals reversed and remanded for further proceedings. 56 Kan. App. 2d 140 (2018).  Collins’ petition for review granted. Review also granted on State’s conditional cross-petition for review of panel’s failure to decide whether State met its probable cause burden to demonstrate Collins was the aggressor at the time of the fatal stabbing and initially provoked the use of force. Review granted on Collins’ petition and State’s conditional cross-petition.

ISSUE: Self-defense immunity

HELD: Collins is not entitled to self-defense immunity from prosecution. Relevant statutes examined—K.S.A. 2019 Supp. 21-5231 (self-defense immunity statute and State’s burden to show probable cause the defendant’s use of force was not statutorily justified), K.S.A. 2019 Supp. 21-5222 (statutory justification for use of force), and K.S.A. 2019 Supp. 21-5226 (grounds making self-defense justification unavailable). Another case examining these statutes, State v. Thomas, 311 Kan. __  (this day decided), is cited. On facts found by district court, there is probable cause to believe Collins’ use of force was not statutorily justified. The escalating sequences of events comprising the deadly encounter are broken down into four discrete uses of force and examined. The initial aggressor statute, K.S.A. 2019 Supp. 21-5226, operates conclusively to deny Collins’ immunity motion and district court is reversed on that basis. District relied on its accurate finding of no evidence that Collins was escaping from a felony, but failed to consider other disqualifying conduct in 21-5226(a)—that Collins was attempting to commit, or committing a forcible felony. State supplied probable cause to believe Collins’ killing and wounding of the victims were not justifiable acts of self-defense under the Kansas statutory scheme. State’s prosecution of Collins should have been permitted to continue.  

STATUTES: K.S.A. 2019 Supp. 21-5111(n), -5221, -5221(a)(1)(A), -5222, -5222(b), -5226, -5226(a), -5226(b), -5226(c), -5226(c)(1), -5226(c)(2), -5231, -5231(a) -5231(c), -5403(a)(1), -5412(a); K.S.A. 2015 Supp. 21-5413(b)(2)(B)

appeals—criminal procedure—motions
state v. espinoza
wyandotte district court—affirmed
no. 118,737—april 24, 2020

FACTS: Espinoza pleaded guilty to first-degree felony murder. In pre-sentence motion he sought a durational departure claiming the mandated hard-25 sentence was unconstitutional as applied. He argued the three-pronged proportionality test in State v. Freeman 223 Kan. 362 (1978), required district court to assess specific facts of his case to determine constitutionality of his sentence under § 9 of Kansas Constitutional Bill of Rights, and listed facts he believed weighed in favor of granting a durational departure. District court denied the challenge. Espinosa challenged that decision on direct appeal, arguing the district court failed to make such findings, and seeking remand to develop the necessary factual record.

ISSUE: Appellate review of constitutional claim

HELD: It is a defendant’s responsibility to ensure the district court makes the factual findings necessary for appellate review, and this responsibility goes beyond merely raising a constitutional claim. Here, Espinoza did not object to district court’s failure to make factual findings at sentence, and he did not file a motion under Kansas Supreme Court Rule 165. Espinoza’s as-applied challenge to the constitutionality of his hard-25 sentence is not amenable to appellate review.  

appeals—criminal procedure—immunities—statutes
state v. Thomas
barton district court—reversed and remanded; court of appeals—affirmed
no. 116,111—April 24, 2020

FACTS:  State charged Thomas with first-degree murder for shooting and killing an unarmed man outside that man’s residence. Thomas filed pretrial motion to dismiss based on self-defense immunity under K.S.A. 2019 Supp. 21-5231. State argued Thomas did not qualify for statutory immunity because his use of deadly force was not justified under K.S.A. 2019 Supp. 5222, and because Thomas was the initial aggressor under K.S.A. 2019 Supp. 21-5226. Making no distinct factual findings, district court dismissed the complaint, cited the investigating officer’s testimony that Thomas was justified in drawing his weapon, and held the State did not meet its burden to show probable cause the self-defense immunity did not apply. State appealed. Court of Appeals reversed in unpublished opinion, finding the district court failed to make sufficient findings of fact and conclusions of law, and remanded case for another evidentiary hearing in compliance with Supreme Court Rule 165. Thomas’ petition for review granted.

ISSUE: Self-defense immunity

HELD: Panel’s judgment is affirmed. District court’s role in deciding complex immunity claims before trial is discussed, and relevant statutes are examined - K.S.A. 2019 Supp. 21-5231 (self -defense immunity statute and State’s burden to show probable cause the defendant’s use of force was not statutorily justified), K.S.A. 2019 Supp. 21-5222 (statutory justification for use of force), and K.S.A. 2019 Supp. 21-5226 (grounds making self-defense justification unavailable). Another case examining these statutes, State v. Collins, 311 Kan. __  (this day decided), is cited. Under State v. Hardy, 305 Kan. 1001 (2017), district court’s fleeting explanation of its conclusions in this case, without first adequately addressing contradictory testimony, was error and specific examples are identified. Also, Thomas did not directly challenge the panel’s additional direction that a new evidentiary hearing is necessary before making the required findings of fact and conclusions of law. District court’s judgment is reversed and case is remanded with directions.

STATUTE: K.S.A. 2019 Supp. 21-5221(a), -5221(a)(1)(B), -5221(a)(2), -5222, -5222(b), -5226, -5226(b), -5226(c), -5231, -5402(a)(1)

Tags:  appeals  Barton District Court  criminal procedure  immunities  motions  Sedgwick District Court  statutes  Wyandotte District Court 

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