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April 17, 2020 Digests

Posted By Administration, Monday, April 20, 2020

Kansas Supreme Court

criminal

appeals—criminal procedure—evidence—jury instructions—sentences
state v. broxton
wyandotte district court—reversed and remanded
court of appeals—affirmed in part and reversed in part
no. 114,675—april 17, 2020

FACTS: Broxton convicted of second-degree murder, burglary, and felony theft. During trial, State introduced identity evidence of Broxton’s arrest in a 1996 Florida homicide case that closely mirrored the homicide in this case. District court denied Broxton’s request to admit evidence of a “No Information” document executed by the Florida prosecutor that indicated Florida lacked sufficient evidence to charge Broxton. District court found the document lacked probative value because it did not decisively state Broxton was innocent of that crime. District court also denied Broxton’s request for a felony-murder instruction, finding the instruction was legally inappropriate because State only charged Broxton with first-degree premeditated murder and felony murder. is not a lesser included offense. Broxton appealed claiming district court erred by: (1) failing to give a felony-murder instruction; (2) excluding from evidence the Florida homicide investigation document; and (3) improperly scoring Broxton’s prior Florida burglary conviction as person felony. Court of Appeals affirmed in unpublished opinion.

            As to the felony-murder instruction claim, panel found such an instruction was not factually appropriate in this case, and relying on State v. Young, 277 Kan. 588 (2004), explained that district court may instruct for felony murder even though the State only charged premeditated first-degree murder but was under no duty to do so. Broxton petitioned for review of panel’s decision that a felony-murder instruction was not factually appropriate. State cross-petitioned panel’s holding that a felony-murder instruction was legally appropriate.

            As to the exclusion of evidence claim, panel found the No Information document was relevant, but district court’s error in excluding this evidence was harmless. On appeal, Broxton challenged the panel’s harmlessness conclusion; State challenged panel’s finding of error.

            As to the scoring of Broxton’s prior Florida burglary conviction, a claim raised for first time on appeal, Broxton cites the change of law in State v. Wetrich, 307 Kan. 552 (2018).

            Review granted on Broxton’s petition and the State’s cross-petition.

ISSUES: (1) Jury instruction—uncharged crime; (2) admission of “no information” evidence

HELD: District court did not err in refusing to give a felony-murder jury instruction. Young predates the more precise framework for analyzing jury instructions adopted in State v. Plummer, 295 Kan. 156 (2012), and misstep in Young is apparent when viewed in light of Plummer. Because State did not charge Broxton with felony murder—and felony murder is not a lesser included offense of any crime Broxton was charged with—a felony-murder instruction was not legally appropriate in this case. No need to consider if the instruction would have been factually appropriate.

            District court erred by excluding the Florida “No Information” document from evidence, but any prejudice resulting from this exclusion was harmless in light of the entire record.

            The 1989 Florida burglary conviction must be scored as a nonperson felony. The Florida burglary statue prohibits a broader range of conduct than the Kansas statute, thus these are not comparable offenses. Under State v. Williams,  311 Kan. __ (2020), the change of law in Wetrich did not make Broxton’s sentence illegal, but did render it erroneous. Broxton must be resentenced correctly with his Florida burglary conviction scored as a nonperson felony. Sentence is vacated and case is remanded for resentencing.

STATUTES: K.S.A. 2019 Supp. 60-261, -455; K.S.A. 21-6810(d), -6811(c), -6811(j), 60-455

appeals—constitutional law—criminal law—sentences—statutes
state v. Corbin
saline district court—affirmed
no. 119,665—April 17, 2020

FACTS: Corbin entered no contest plea to first-degree premeditated murder. At sentencing he argued he was a person with an intellectual disability who was not subject to a mandatory minimum prison term by operation of K.S.A. 2019 Supp. 21-6622(b). District court disagreed and imposed a hard-25 life sentence. While Corbin’s appeal was pending, the legislature amended the statute to add other ways to establish the “significantly sub-average general intellectual functioning” standard. Kansas Supreme Court reversed and remanded for district court to reconsider Corbin’s motion using the new legislative criteria for determining intellectual disability. State v. Corbin, 305 Kan. 619 (2016). On remand, Corbin was allowed to present additional information. District court resentenced him to the original mandatory term, again finding Corbin was not a person with intellectual disability and. Corbin appealed.

ISSUE: Intellectual disability

HELD: District court did not abuse its discretion when it rejected Corbin’s motion and imposed a mandatory term of imprisonment. District court’s decision is reviewed as a “reason to believe” determination under K.S.A. 2019 Supp. 21-6622(b). Implications of extending State v. Thurber, 308 Kan. 140 (2018), outside the death penalty context are not argued or considered. 

STATUTES: K.S.A. 2019 Supp. 21-6622, -6622(b), 6622(h), 22-3601(b); K.S.A. 2015 Supp. 76-12b01(i); K.S.A. 60-2101(b), 76-12b01(i)

contracts—criminal procedure—evidence
state v. frazier
geary district court—reversed and remanded—court of appeals - reversed
no. 117,456—April 17, 2020

FACTS: Officers stopped car driven by Gould with passenger Frazier. Heroin was found, which led to search warrant in Ohio and discovery of drug evidence there. In Kansas, Frazier and Gould entered pleas pursuant to plea agreements that stated Ohio authorities agreed to dismiss and/or not file any charges resulting out of search warrant obtained as a result of the Kansas arrest. Prior to sentencing Frazier filed motion to withdraw plea, citing his discovery that an Ohio prosecutor had signed Gould’s agreement but not Frazier’s. District court denied the motion, finding the plea was fairly made and Frazier fully understood the consequences of his plea. Applying factors in State v. Edgar, 281 Kan. 30 (2006), Court of Appeals affirmed in unpublished opinion. Panel emphasized Frazier’s awareness that his attorney had not spoken with Ohio authorities, and they had not signed off on his plea agreement, and concluded Frazier was not misled or coerced about possibility of being charged in Ohio. Frazier petitioned for review, arguing district court abused its discretion because there were misleading or false statements contained in the plea agreement.

ISSUE: Withdrawal of plea—plea agreement  

HELD: Fundamental problem not addressed below is that Frazier was relying on a promise of conduct not made by a party to the plea agreement. Under basic principle of contract law, prosecutor and defense counsel presented Frazier with a contract that could be legally unenforceable against any Ohio prosecutor. A defendant does not understandingly sign a plea agreement when he relies on an uncertain provision that works in his favor and he justifiably believes that provision to be a certainty. No dispute in this case that the certainty of the lack of prosecution in Ohio was a significant factor in Frazier’s decision to enter into the plea agreement. District court’s decision finding no good cause for withdrawal of Frazier’s plea was based on errors of fact and law. Reversed and remanded to district court for Frazier to be permitted to withdraw his plea.    

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

appeals—constitutional law—criminal procedure
state v. harris
atchison district court—reversed and remanded; court of appeals—reversed
no. 117,362—april 17, 2020

FACTS: Harris was convicted in bench trial of felonious possession of marijuana. He appealed on four issues, claiming in part for first time that he did not properly waive his right to jury trial. Court of Appeals affirmed, 55 Kan.App.2d 579 (2018). Review granted on all issues.

ISSUE: Waiver of right to jury trial

HELD: Court addresses merits of the jury trial claim to prevent denial of fundamental right.  District court failed to properly apprise Harris of right to a jury trial and failed to ensure Harris understood the nature of the right he was waiving. Once Harris expressed his preference, district court simply accepted that Harris wanted the court to decide the matter and moved on without taking any steps to ensure Harris understood the right he was giving up. District court and Court of Appeals decisions are reversed. Case remanded to district court so Harris can be informed of right to a jury trial—and either exercise that right or properly waive it. Remaining issues in the appeal are not addressed.

STATUTES: None

CRIMINAL LAW—CRIMINAL PROCEDURE—EVIDENCE—JURY INSTRUCTIONS

STATE V. UK

LYON DISTRICT COURT—AFFIRMED
NO. 119,712—APRIL 17, 2020

FACTS: UK charged and convicted of first-degree premeditated murder. Based on evidence he had quarreled with victim, UK requested a voluntary manslaughter instruction as a lesser included offense. District court denied that request, finding no evidence of legally sufficient provocation. On appeal, UK claimed district court erred in not giving the jury the requested instruction, arguing district court improperly evaluated the degree of the quarrel as opposed to its existence, and further argued Kansas caselaw has erroneously conflated the separate statutory elements of “sudden quarrel” with “heat of passion.” UK also claimed for first time on appeal that district court erred in giving jury an unmodified PIK instruction that did not sufficiently define “premeditation.”

ISSUES: (1)  Jury instruction—voluntary manslaughter; (2) jury instruction—premeditation

HELD: UK’s request for a voluntary manslaughter instruction was legally appropriate but not factually appropriate. The mere existence of a “sudden quarrel” immediately preceding a homicide, without evidence of legally sufficient provocation, is insufficient to make a jury instruction on voluntary manslaughter factually appropriate. In this case, no error in district court’s limited gatekeeping determination that evidence did not constitute legally sufficient provocation. And UK’s conflation-of-statutory-elements argument essentially asks the court to overturn precedent dating back to State v. Coop,  223 Kan. 302 (1978), which the court declines to do.

            District court did not err in defining premeditation for the jury. Though the PIK instruction used both “intent” and “intentional” within two sentences, in context the meanings    of those two words leave no doubt that “premeditation”—as a thought process conducted some time before an act—is clearly different than the intentional nature of the act itself.              

STATUTE: K.S.A. 2019 Supp. 21-5202(h), -5402(a)(1), -5404

 

Kansas Court of Appeals

Civil

ACQUIESCENCE—CHILD SUPPORT—JURISDICTION
IN RE HENSON
SEDGWICK DISTRICT COURT—REVERSED AND REMANDED
NO. 120,543—APRIL 17, 2020

FACTS: Chris and Gina Henson divorced in 1991. Gina was awarded primary custody of the couple's children; Chris was ordered to pay child support and half of the children's medical expenses. Several years after the divorce, Chris moved to California while Gina remained in Kansas. In 1994, Gina attempted to enforce Chris's child support obligations, a case was opened in California, and Chris began paying child support under an income withholding order. A few years later, the district court trustee asked the California court to increase the child support amount and require payment for medical bills and insurance. The California court significantly increased Chris's child support obligation and asked that additional funds be paid towards the arrearage. In 2002, Chris moved to Colorado. The court trustee registered the California judgment and Chris's employer began withholding income. Gina moved to determine an arrearage, and after Chris did not appear the district court issued a default judgment, basing the arrearage amount on the California judgment. Chris eventually moved to set aside the default judgment on grounds that the California judgment was void. That motion was denied, and the district court renewed its holding that the California judgment remains in effect and that any calculation of Chris's arrearage should be based off that judgment. Chris appealed

ISSUES: (1) Jurisdiction of California court; (2) validity of default judgment; (3) request for setoff; (4) income withholding order; (5) attorney fees

HELD: Chris's challenge about the validity of the California judgment involves a challenge to subject matter jurisdiction. As such, it may be raised at any time. Similarly, there is no time limit on a challenge to a void judgment. Chris did not acquiesce in the California judgment by paying child support under it; paying a void judgment cannot amount to acquiescence. When the district court modified Chris's child support obligation, the Uniform Reciprocal Enforcement of Support Act was in effect in California but not in Kansas. The Full Faith in Credit for Child Support Orders Act accounts for this, requiring each state to recognize ongoing child support obligations from other states and giving them power to modify child support obligations only under limited circumstances. The FFCCSOA preempts URESA with respect to child support modification in an URESA enforcement action. Under the FFCCSOA, only Kansas had jurisdiction to modify Chris's child support obligation. California's child support modification order is void and cannot be used as a basis for default judgment or to determine arrearages. The district court did not make adequate findings of fact to allow for a review of whether Chris is entitled to an equitable setoff for amounts he overpaid under the void California judgment. That fact-finding must be done on remand. The district court was required to issue an income withholding order after it determined the amount of Chris's arrearage. But because the order is based on the void California judgment, the withholding order is no longer legally enforceable. On remand, the district court must determine the appropriateness of enforcing any future income withholding order. The district court did not abuse its discretion by awarding Gina attorney fees for representation undertaken in district court. But Gina is not awarded attorney fees on appeal because the application for fees did not comply with Supreme Court Rule 7.07(b)(2).

STATUTES: 23 U.S.C. §1738B; K.S.A. 2019 Supp. 23-2715, -3103(a), -36,202, -36,205, -36,205(c), -36,313, 60-260(b)(4), -260(b)(5), -260(c); K.S.A. 23-451, -9,101, -3106(a)

Tags:  acquiescence  Appeals  child support  Constitutional law  contracts  criminal law  criminal procedure  evidence  jurisdiction  jury instructions  sentences  statutes 

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April 10, 2020 Digests

Posted By Administration, Monday, April 13, 2020

Kansas Supreme Court

Civil

EMERGENCY PROCEDURES—QUO WARRANTO
KELLY V. LEGISLATIVE COORDINATING COUNCIL
ORIGINAL ACTION—QUO WARRANTO GRANTED IN PART
NO. 122,765—APRIL 11, 2020

FACTS: Because of the global pandemic caused by the novel coronavirus, Governor Kelly issued an emergency proclamation and follow-up executive orders. Under statute, the state of disaster emergency could not last longer than 15 days unless ratified by a concurrent resolution of the Legislature. Within that 15-day window, the legislature adopted House Concurrent Resolution 5025, extending the Governor's declaration to May 1, 2020. Governor Kelly used her emergency powers to issue Executive Order 20-18 which temporarily prohibited "mass gatherings", defined as any event that would bring together more than 10 people in an enclosed space. Importantly, Executive Order 20-18 removed religious gatherings from a list of exempted activities. Acting under HCR 5025, the Legislative Coordinating Council convened, voted, and revoked Executive Order 20-18. Governor Kelly filed this original action in quo warranto, and expedited proceedings were allowed given the unusual circumstances.

ISSUE: (1) Authority of the LCC

HELD: Quo warranto is an appropriate procedure for questioning the LCC's authority to revoke Executive Order 20-18. The House of Representatives and the Senate are not appropriate parties to the action and are dismissed. But the governor has standing to pursue this action. HCR 5025 establishes a conditions precedent which must be met before the LCC can act if the Legislature is not in session, including input from the State Finance Council. The LCC cannot act until the State Finance Council acts. K.S.A. 46-1202 is a general statute which creates the LCC and gives it some authority. In this instance, that statute must give way to the more specific statute, which governs the revocation of executive orders during an emergency.

CONCURRENCE: (Biles, J.) While agreeing with both the outcome and rationale, Justice Biles questions whether HCR 5025 can confer oversight powers on the LCC at all.

CONCURRENCE: (Stegall, J.) The majority reached the right outcome using the right rationale. There are lingering issues with the Kansas Emergency Management Act relating to separation of powers. The plain language of HCR 5025 may produce absurd results, but the court has no authority to rewrite the resolution.

STATUTES: K.S.A. 2019 Supp. 48-925 -925(b); K.S.A. 46-1202, 48-924, -924(b), 60-1203

criminal 

criminal procedure—sentences—statutes
state v. coleman
saline district court—reversed and remanded 
court of appeals—affirmed
no. 118,673—april 10, 2020

FACTS: In 2013, 2014, and 2015 cases, Coleman granted downward dispositional departure sentences of probation with underlying prison terms. In November 2017 revocation hearing, district court ruled that because probation had been granted as the result of dispositional departures it had authority under K.S.A. 2017 Supp. 22-3716(c)(9)(B), effective July 1, 2017, to revoke probation and impose the underlying sentences without first imposing intermediate sanctions. Coleman appealed. In unpublished opinion, Court of Appeals reversed and remanded, holding the trial court erred in applying K.S.A. 2017 Supp. 22-3716(c)(9)(B) retrospectively. State’s petition for review granted.

ISSUE: Probation revocation

HELD: Court of Appeals judgment is affirmed. The K.S.A. 2017 Supp. 22-3716(c)(9)(B) exception, which allows a trial court to revoke a probationer’s probation without first imposing graduated sanctions if the probation was granted as a result of a dispositional departure, applies only to probationers whose offenses or crimes of conviction occurred on or after that statute’s effective date.  District court judgment is reversed and case remanded with directions.

STATUTES: K.S.A. 2017 Supp. 22-3716, -3716(c)(9)(B); K.S.A. 2014 Supp. 22-3716(c)(11); K.S.A. 20-3018(b), 60-2101(b)

 

Kansas Court of Appeals

Civil

CONTRACTS—EMPLOYMENT
HEFNER V DEUTSCHER
SHAWNEE DISTRICT COURT—REVERSED AND REMANDED
NO. 119,201—APRIL 10, 2020

FACTS: Hefner, Deutscher, and Rottinghaus worked together in their optometry practice as a corporation. As an employee of the corporation, Hefner signed a noncompete agreement barring him from employment within a set geographic area for three years following his employment with the corporation. The contract specified that damages would be awarded for any breach or "threatened breach" of the contract. Over time, Hefner and Deutscher's relationship soured, and both parties proposed strategies that would allow Hefner to leave the corporation. Before the details could be finalized, Hefner located new office space and registered a new tradename with the Kansas Optometry Board. Hefner ultimately resigned instead of finalizing his exit agreement. And instead of practicing, Hefner decided he would rather teach optometry. It was thought that Hefner would work for the corporation for an additional six months, but Deutscher fired him for violating the noncompete clause. Hefner filed suit for breach of contract and wrongful termination. All parties filed competing motions for summary judgment. The district court granted Hefner's motion for partial summary judgment on his breach of contract claim and granted the corporation's motion for summary judgment on Hefner's wrongful termination claim. After a bench trial on the remaining breach of fiduciary duty claim, the district court found that Deutscher and Rottinghaus breached their fiduciary duty to Hefner because their motives for terminating Hefner were not made in fairness and good faith to the corporation. The district court awarded Hefner in excess of $1 million in damages. The corporation, Deutscher, and Rottinghaus appealed.

ISSUE: (1) Hefner's breach of contract claim

HELD: The use of the phrase "threatened breach" in Hefner's employment contract did not mean the same thing as an anticipatory breach. It had a broader meaning under the plain language of the employment contract, and encompassed actions which would lead a reasonable person to believe that a breach is imminent and likely to happen. The district court incorrectly defined "threatened breach", and this error resulted in the district court wrongly granting Hefner's motion for summary judgment. This case must be remanded to the district court for further action.

STATUTES: No statutes cited.

RATEMAKING—UTILITIES
HANSON V. KCC
STEVENS DISTRICT COURT—AFFIRMED IN PART,
REVERSED IN PART, REMANDED TO KCC
NO. 119,834—APRIL 10, 2020

FACTS: TKO Gas, LLC provides limited natural gas service in Kansas, operating as a middleman to resell gas to customers. TKO assumed contract rights from a previous provider and never went through a formal rate-setting process. Over time, some customers complained that TKO improperly calculated the heat content of the gas it was selling, resulting in a consistent 9.5% overcharge. Staff found that TKO changed the pressure at which is delivered natural gas. TKO acknowledged that this happened, but claimed it was industry standard practice to do so, and that the practice was in its contracts which were approved by the KCC. The KCC held a hearing and determined that none of the customers were entitled to relief. Even though TKO admitted to all of the customers' claims, the KCC ultimately determined that the rates charged by TKO were still reasonable, resulting in no harm to the customers. The district court reversed this finding, ruling that the KCC improperly focused on rate making while ignoring TKO's improper billing practices. The district court ordered the KCC to calculate the exact amount of overbilling and require TKO to pay refunds. TKO appealed.

ISSUE: (1) KCC's ability to address overpayment

HELD: The KCC is not limited to ratemaking or rate-reviewing functions. It has broad authority to determine whether any action is unreasonable or unfair. The KCC erred by only focusing on whether TKO's rates were reasonable, ignoring TKO's flawed billing methodology. TKO's practice of changing the pressure at which gas is distributed resulted in an overcharge and was neither honest nor fair. The KCC erred by not addressing it. But the district court erred by directing the KCC on how to fix this error. The KCC has total statutory control over crafting an appropriate remedy, and the case is remanded to the KCC.

STATUTE: K.S.A. 66-1,201, -1,205, -1,205(a), -1,206, -1,206(a), -1,207, 77-621(a)(1), -621(c)(4)

OIL AND GAS—TAX
IN RE TAX APPEAL OF RIVER ROCK ENERGY COMPANY
BOARD OF TAX APPEALS—AFFIRMED IN PART, REVERSED IN PART, REMANDED
NO. 120,387—APRIL 10, 2020

FACTS: In 2016, River Rock acquired producing gas wells, leases, and other assets in Kansas. After taking possession, River Rock learned that the counties in which the wells were located assigned a total appraised value of over $13 million. River Rock appealed while paying its taxes under protest. But River Rock only paid filing fees for a small percentage of its wells. River Rock sought an abatement of the filing fees it did pay. The Property Valuation Division of the Kansas Department of Revenue intervened to defend its valuation methods. After a hearing based on written testimony, BOTA upheld the counties' valuations. River Rock appealed.

ISSUES: (1) Valuing wells based on minimum lease values; (2) minimum leave values creating arbitrary and erroneous valuations; (3) whether BOTA properly considered the evidence; (4) whether BOTA erred when valuing equipment in the wells; (5) filing fee abatements

HELD: Personal property must be appraised at its fair market value. The Kansas Oil and Gas Appraisal Guide does not comply with this statutory directive because it prevents the gross working interest in any producing well from ever dropping to zero. The use of a minimum lease value on limited-production wells creates an assessed value higher than the actual gross working interest value, arbitrarily substituting the higher of two possible values. The Guide does not allow for the proper reconciliation of market values when the working interest value differs greatly from the minimum leave value. When an appraiser uses the minimum lease value, deductions for actual costs and other expense allowances are no longer used. This prevents sufficient consideration of these costs and does not lead to a fair market value of the property. Actual evidence shows that River Rock has wells with negative gross working interest, but the assigned minimum lease values do not reflect fair market value. BOTA did not ignore relevant evidence, rather overly simplified the evidence. River Rock cannot tie the value of its equipment to variable market conditions which ultimately affect the price of natural gas. BOTA properly valued River Rock's equipment with one exception: BOTA erred when valuing segments of underground poly flow lines. BOTA disregarded uncontroverted evidence that the lines could not be salvaged without destroying them. Filing fees are not allowed if they exceed the reasonable costs of administering the appeals. Neither BOTA nor River Rock properly calculated River Rock's filing fees, but the record on appeal does not contain enough information to determine how much abatement should have been granted to River Rock. If BOTA wants to deny River Rock's request for abatement, it must explain why.

STATUTE: K.S.A. 77-603(a), -613(e), -621(a)(1), -621(c), 79-329, -331(a), -501, -503a

GARNISHMENTS
STORMONT-VAIL HEALTHCARE V. SIEVERS
SHAWNEE DISTRICT COURT—AFFIRMED
NO. 121,109—APRIL 10, 2020

FACTS: Stormont-Vail received a consent judgment against Sievers for unpaid medical expenses. The amount of the debt is undisputed. Sievers refused to set up a payment plan and instead asked Stormont-Vail to garnish him. Stormont-Vail took him up on his offer and filed two requests for orders of garnishment: one from his employer and one to attach Sievers' other property held in bank accounts. Sievers objected to the garnishment order at his bank, arguing that the funds in his bank account were exempt from attachment because the funds met the definition of "earnings." The district court disagreed with Sievers, finding that once Sievers' paycheck was deposited into a bank account the money became garnishable. Sievers appeals.

ISSUE: (1) Whether wages deposited into a bank account can be garnished

HELD: Kansas statutes create limits on how much of a debtor's earnings can be attached by a nonwage garnishment order. Only an employer can act as the garnishee for a wage garnishment. The meaning of "earnings" is expressly tied to an employer-employee relationship, and once money paid as earnings is deposited into a bank account it loses its status as earnings. The money in Sievers' bank account was garnishable, even if the funds originated from his earnings.

DISSENT: (Standridge, J.) Wages paid by an employer are earnings. So wages electronically paid to Sievers by his employer via direct deposit into his bank account meet the statutory definition of earnings and are exempt from attachment through garnishment.

STATUTE: K.S.A. 2019 Supp. 60-2310(a)(1), 61-3504(a), -3504(b), -3505(a), -3506(g), -3507, -3507(a), -3508, -3509, -3510; K.S.A. 61-3502, -3505

criminal

constitutional law—criminal procedure—evidence—juries—jury instructions
state v. albano
riley district court—affirmed
no.120,767—april 10, 2020

FACTS: Albano convicted of distribution of a controlled substance within 1,000 feet of a school. On appeal she claimed: (1) district court erred by failing to give a limiting instruction concerning the admission of evidence of Albano’s prior drug convictions; (2) district court undermined jury’s power of nullification by instructing jury that it “must” follow the law and that it was jury’s “duty” to do so; and (3) sentencing court’s use of judicial findings of prior convictions to sentence Albano violated section 5 of Kansas Constitution Bill of Rights - the right of trial by jury.

ISSUES: (1) limiting instruction—prior crimes; (2) jury instructions—power of nullification; (3) sentencing—Kansas Constitution

HELD: State’s argument that Albano invited the limiting-instruction error is rejected. A defendant does not waive applicability of a limiting instruction simply by introducing K.S.A. 60-455 evidence because a limiting instruction is required regardless of which party introduced the evidence. Here, district court erred in failing to give a limiting instruction, but this failure was not clearly erroneous. Unclear how jury could have impermissibly relied on Albano’s prior convictions as general propensity evidence when it was undisputed she committed the acts in question, and jury’s acquittal on one of the three charges establishes that jury did not impermissibly rely on the prior convictions to establish guilt.

            District court did not err in giving legally correct instructions. State v. Boothby, 310 Kan. 619 (2019), determined that the same “must follow the law” language Albano challenged in one instruction did not interfere with jury’s power to nullify. The “duty” language challenged   in a second instruction is substantively identical—telling jury to follow the law.

            There is no authority for the proposition that section 5 provides greater protection than the federal jury trial right by requiring a jury to determine criminal history. And the section 5 jury trial right does not prohibit judicial findings of prior criminal history because there was no common law right to have a jury determine criminal history when the Kansas Constitution was adopted.    

STATUTES: K.S.A. 2019 Supp. 22-3414(3); K.S.A. 60-455

constitutional law—criminal procedure—evidence
state v. R.W.
douglas district court—affirmed
no. 120,854—April 10, 2020

FACTS: Juvenile R.W. was interrogated several hours at police facility after being picked up from high school by two police officers. State later charged R.W. with multiple criminal counts including rape and aggravated battery, and district court certified R.W. for trial as an adult. R.W. filed motion to suppress statements he made during interrogation. District court granted the motion, finding R.W.’s statements were not the product of a free and independent will, and citing the officers’ promises, benefits, and reassurances as resulting in R.W.’s will being overborne. State filed interlocutory appeal.

ISSUE: Fifth Amendment—juveniles

HELD: District court’s suppression order is affirmed. Totality of circumstances in this case suggest that R.W.’s confession was not the product of a free and independent will. Standard of care to be exercised in assessing the validity of a juvenile’s statements during interrogation without counsel present is discussed. Here, substantial competent evidence supported district court’s factual findings, and district court applied the correct legal analysis. Agreement stated with specific findings and considerations in district court’s comprehensive memorandum decision. Officers may have had good intentions, but statements made to juveniles that are likely to mislead them regarding the nature and legal consequences of an interrogation have the potential to render a confession involuntary.

STATUTES: K.S.A. 2019 Supp. 22-3603, 60-460(f); K.S.A. 60-460(f)

Tags:  Constitutional law  contracts  criminal procedure  emergency procedures  employment  evidence  garnishments  juries  jury instructions  oil and gas  quo warranto  ratemaking  sentences  statutes  tax  utilities 

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April 3, 2020 Digests

Posted By Administration, Tuesday, April 7, 2020

Kansas Supreme Court

ATTORNEY DISCIPLINE

ORDER OF REINSTATEMENT
IN RE ROSIE M. QUINN
NO. 119,148—APRIL 3, 2020

FACTS: In 2018, Quinn's license to practice law in Kansas was indefinitely suspended. She filed a petition for reinstatement in 2019, and a hearing panel heard her application for reinstatement. After that hearing, the panel unanimously recommended Quinn's reinstatement, subject to certain conditions.

HELD: The court agrees with the hearing panel and grants the petition for reinstatement. Prior to her return to active practice, Quinn must comply with annual CLE requirements and pay all fees. Quinn's practice must be supervised for two years, and she must enter a monitoring agreement with the Kansas Lawyers Assistance Program.

Civil

ADMINISTRATIVE LAW—UTILITIES
IN RE JOINT APPLICATION OF WESTAR ENERGY AND
KANSAS GAS AND ELECTRIC CO
KANSAS CORPORATION COMMISSION—COURT OF APPEALS IS REVERSED, KCC IS REVERSED, CASE REMANDED
NO. 120,436—APRIL 3, 2020

FACTS: In 2018, Westar and Kansas Gas sought a rate increase and certain changes in residential rate design. When considering the rate design, the companies had to address a two-part rate, involving both a flat service charge and a variable energy charge based on the amount of energy used during a billing period. Some of the utilities' fixed costs are recovered through the variable energy charge. Some of the utilities' customers are attached to the electric grid but also get power through an alternative source, such as solar or wind. These customers, known as "partial requirements customers", use less generated electricity and may have zero due for variable energy charges. This creates an issue for the utility, which has the same fixed costs regardless of how much energy is purchased. In an attempt to attempt to even the ledger, the utilities received approval for a new rate structure, applicable only for partial users. Some of the parties to the agreement objected to the rate structure meant only for partial users. After that rate structure was approved, two intervenors appealed to the Court of Appeals.

ISSUE: (1) Whether the rate structure approved by the KCC is allowable

HELD: Kansas statute bars a utility from establishing higher rates or charges for any customer who uses alternative energy. Under the proposed dual-rate system, partial users will pay more for electricity than other customers. The Court of Appeals erred when it found a conflict in our statutes. The utilities are allowed to use a different rate structure for partial use customers, but that structure cannot result in price discrimination.

STATUTES: 16 U.S.C. §796 (17)(A); K.S.A. 66-117d, -118a(b), -118c, -1265(e), 77-621(c)(4)

criminal

criminal procedure—motions—sentences—statutes
state v. coleman
sedgwick district court—affirmed; court of appeals—affirmed
no. 115,293—april 3, 2020

FACTS: Coleman convicted in 2012, 2013, and 2014. In 2015 she was convicted of two counts of theft that were committed weeks after the effective date of the 2015 amendment of  K.S.A. 21-6810 in the Kansas Sentencing Guidelines Act (KSGA). Probation revoked in Coleman’s three prior cases. Coleman challenged the legality of her sentences in those three prior cases, and filed a direct appeal from the 2015 sentence. District court denied relief on all claims. Court of Appeals affirmed in unpublished opinion. In consolidated appeal, review granted on common issue of whether district court erred in scoring Coleman’s prior 1992 Kansas involuntary manslaughter conviction as a person felony.

ISSUES: (1) Classification of prior Kansas conviction—direct appeal; (2) classification of prior Kansas conviction—probation revocation

HELD: The identical-or-narrower test adopted in State v. Wetrich, 307 Kan. 552 (2018), for classifying prior out-of-state convictions applies as well to in-state Kansas convictions for crimes committed before KSGA used person and nonperson designations. Coleman’s arguments that the 1992 involuntary manslaughter statute was broader than the statute making involuntary manslaughter a person offense at the time of her 2015 theft convictions are examined and rejected. District court properly scored the 1992 conviction as a person felony when sentencing Coleman’s 2015 theft convictions.

            Coleman may not file a motion to correct an illegal sentence based on a constitutional challenge, and her 1992 conviction was properly scored in the earlier sentences. Court does not resolve whether the identical-or-narrower test, or the judicially adopted comparability rule for pre-KSGA Kansas offenses in State v. Keel, 302 Kan. 560 (2015), is applicable when pre-KSGA Kansas offenses are used to sentence crimes committed before K.S.A. 2015 Supp. 21-6810 codified the comparability requirement. 

STATUTES: K.S.A. 2018 Supp. 21-6801 et seq., -6804(a), -6810, -6811(e)(3); K.S.A. 2015 Supp. 21- 6810; K.S.A. 2014 Supp. 21-6810(d)(2); K.S.A. 2013 Supp. 21-5801(b)(6); K.S.A. 2011 Supp. 21-5202(j), -5405, -5801(b)(6); K.S.A. 20-3018(b), 21-3201(c), 60-2101(b); K.S.A. 21-3201, -3201(c), -3404 (Ensley 1988)

 

Kansas Court of Appeals

Civil

SUBROGATION—WORKERS COMPENSATION
HAWKINS V. SOUTHWEST KANSAS CO-OP SERVICE
WORKERS COMPENSATION BOARD—REVERSED AND REMANDED
NO. 118,379—APRIL 3, 2020

FACTS: Hawkins suffered catastrophic injuries while working for Southwest Kansas Co-op; his injuries require on-going care. Southwest Kansas Co-op provided workers compensation benefits to Hawkins in excess of $850,000, with the expectation that payments would continue. Hawkins also filed a civil action against other parties who he believed contributed to the accident and his resulting injuries. Southwest Kansas Co-op chose not to intervene in this civil action. Hawkins either settled or received jury verdicts against multiple defendants, resulting in an award of over $4 million. After all proceedings were complete, Southwest Kansas Co-op filed a request in the workers compensation proceeding for a determination of its statutory subrogation lien and any credit for future benefits. An ALJ worked up a mathematical formula to determine how much credit Southwest Kansas Co-op should receive. Three members of the Workers Compensation Board of Appeals agreed with the ALJ and affirmed the result. Hawkins appealed the Board's decision and Southwest Kansas Co-op cross-appealed.

ISSUE: (1) Amount of subrogation award for Southwest Kansas Co-op

HELD: K.S.A. 44-504 does not anticipate liens and credits for employers based on third-party litigation with multiple settlements and verdicts. It is undisputed that Southwest Kansas Co-op is entitled to some lien and future credit, but the statute is unclear as to exactly how much. A jury found that the co-op was 25 percent at fault for Hawkins's injuries. Southwest Kansas Co-op's subrogation amount should have been decreased by an amount acknowledging their 25 percent fault. The terms of a settlement agreement between Hawkins and other parties make it difficult to calculate the amount of any subrogation lien. When recalculating the subrogation amount, the Board must consider each annual payment as a recovery actually paid.

STATUTE: K.S.A. 44-504, -504(b), -504(d), 60-258a

 

Tags:  administrative law  Attorney discipline  criminal procedure  KCC  motions  sentences  statutes  subrogation  utilities  workers comp 

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March 6, 2020 Digests

Posted By Administration, Monday, March 9, 2020

Kansas Supreme Court

Attorney Discipline

TWO-YEAR SUSPENSION
IN RE DANIEL VINCENT SAVILLE
NO. 121,050—MARCH 6, 2020

FACTS: Saville stipulated that he violated KRPC 1.7(a)(2) (conflict of interest). A hearing panel found that Saville also violated KRPC 1.8(e) (providing financial assistance to client); 3.4(c) (fairness to opposing party and counsel); and 8.4(d) (engaging in conduct prejudicial to the administration of justice). Saville engaged in a sexual relationship with a client for over eight years; during the relationship Saville took nude photographs and videos of the client. He also provided her with financial assistance. When the client was charged with a felony, Saville wrote a fee agreement which contemplated that he would represent her for free as long as she did not get back together with a boyfriend.

HEARING PANEL: The hearing panel found numerous conflicts of interest in Saville's representation of his client. He had a prior disciplinary history after being convicted of possession of drug paraphernalia, and there was a lengthy, on-going pattern of misconduct. The panel did acknowledge mitigating factors, including Saville's history of drug use and emotional problems, and his cooperation with the disciplinary process. The disciplinary administrator's office suggested discipline of a one-year suspension. Saville requested that he be allowed to continue to practice, subject to the terms of his proposed probation plan. The hearing panel believed that probation was not appropriate for the rule violations in this case. Ultimately, the hearing panel recommended a six-month term of suspension with the requirement that Saville undergo a reinstatement hearing before being allowed to practice again.

HELD: Because it was not properly preserved, the Court makes no finding as to whether an attorney's payment of bail for a client is a per se violation of Rule 1.8(e). In this case, the undisputed facts show that Saville violated Rule 1.8(e). There was also sufficient evidence that Saville violated Rules 3.4(c) and 8.4(d) by speaking with a sequestered witness. After considering the recommended discipline and noting that Saville refused to accept responsibility of some of the disciplinary counts, a majority of the Court imposed discipline of a two-year suspension from the practice of law. Saville must undergo a reinstatement hearing before returning to practice. A minority of the Court would have imposed the one-year suspension requested by the disciplinary administrator's office.

criminal

appeals—constitutional law—criminal law—sentences—statutes
state v. carter
sedgwick district court—affirmed;
court of appeals—reversed
no. 116,223—march 6, 2020

FACTS:: Carter robbed a store using a Taser. Jury convicted her of aggravated robbery. At sentencing, district court found Carter had used a dangerous weapon to commit the crime, and marked the box on the journal entry that a deadly weapon had been used to commit a person felony. Sentence included registration under the Kansas Offender Registration Act (KORA). Carter appealed her conviction and the registration requirement. Court of Appeals affirmed the conviction but reversed the registration requirement, finding Carter did not use a deadly weapon during the robbery. 55 Kan. App. 2d 511 (2018). State’s petition granted for review of the panel’s registration requirement ruling.

ISSUES: (1) Appellate jurisdiction; (2) “deadly weapon”—K.S.A. 2019 Supp. 22-4902(e)(2)

HELD: Court has appellate jurisdiction over the registration issue under K.S.A. 2019 Supp. 22-3602(a).

            Phrase “deadly weapon” in K.S.A. 2019 Supp. 22-4902(e)(2) is interpreted. “Deadly weapon” when used as element of a crime is distinguished from use of that phrase in a nonpunitive civil regulatory scheme. Under plain meaning of clear statutory language, substantial competent evidence supported district court’s finding that Carter used a deadly weapon in committing the robbery. No departure from majority of Court’s consistent holdings that a district judge’s deadly weapon finding under K.S.A. 2019 Supp. 22-4902(e)(2) does not constitute impermissible judicial fact-finding prohibited by Apprendi.

DISSENT (Rosen, J.)(joined by Beier, J.): Would hold the district court erred in ordering Carter to register under KORA. He first disagrees with majority’s underlying premise that KORA is not a sentencing statute that increases the punishment for certain convictions, and believes State v. Petersen-Beard, 304 Kan. 192 (2016), was wrongly decided for reasons stated in J. Johnson’s dissent in Doe v. Thompson, 304 Kan. 291 (2016). Second, analyzing KORA as sentencing statute, district court’s sentencing pronouncement of “dangerous” weapon did not satisfy KORA, and journal entry box for “deadly” weapon had no effect. Third, a deadly weapon finding at sentencing would have violated Apprendi. And fourth, regardless of whether KORA is punitive or not, State did not produce evidence showing Tasers to be deadly. Majority’s reliance instead on “weight of growing common knowledge of Tasers’ danger” is criticized.

STATUTES:: K.S.A. 2019 Supp. 22-3602(a), -4902(e)(2); K.S.A. 2011 Supp. 21-5420, -5420(b)(1)

 

Kansas Court of Appeals

criminal

appeals—criminal law—criminal procedure—
evidence—jury instructions—statutes
state v. hayes
sedgwick district court—affirmed
no. 120,417—march 6, 2020

FACTS: While dark, Hayes used phone to film neighbor A.W. through her window in a state of undress. Jury convicted Hayes of breach of privacy. On appeal he claimed:: (1) insufficient evidence supported the conviction, arguing A.W. did not have a reasonable expectation of privacy because her blinds were not closed, and the phone he used to record A.W. was not concealed; (2) district court erred in admitting evidence of a receipt that Hayes had purchased a spywatch; (3) because he admitted he recorded A.W., identity was not a material fact thus district court erred in admitting testimony of other neighbors that Hayes had been looking in their windows; (4) verdict form erroneously placed “guilty” before “not guilty; (5) district court erred by instructing jury that you “should” find the defendant guilty if you have no reasonable doubt; and (6) cumulative error denied him a fair trial.

ISSUES: (1) Breach of privacy; (2) evidence—watch receipt; (3) evidence - prior bad acts; (4) verdict form; (5) jury nullification; (6) cumulative error

HELD:: Kansas courts have not addressed the phrase “reasonable expectation of privacy” as used in K.S.A. 2019 Supp. 21-6101(a)(6). Fourth Amendment is distinguished from right to privacy. Fact-specific two pronged test is applied, finding sufficient evidence for jury to conclude that A.W. had a reasonable expectation of privacy in her bedroom even though the window blinds were up. Also, Hayes was concealed when he recorded A.W., thus the phone he used was concealed as well. Statute does not require any additional concealment of the recording device.

            District court did not erroneously admit evidence that Hayes bought a recording device designed to be unobtrusive. Hayes failed to preserve this issue for appeal, but even if preserved, the purchase of a watch that secretly records people was relevant to whether Hayes secretly recorded A.W.: And even if issue had been properly preserved and even if receipt was not relevant, admission of the watch receipt was harmless.

            District court did not erroneously admit prior bad acts evidence. The evidence was admissible to show identity because at time of the rulings Hayes had not admitted that he was the one recording A.W.

            Following established Kansas Supreme Court holdings, district court did not err by placing “guilty” above “not guilty” on the verdict form.

            District court did not err in using PIK instruction to instruct jury that “[i]f you have no reasonable doubt…, you should find the defendant guilty.”:

            There can be no cumulative error in case with at most one error that was found to be harmless.

STATUTES: K.S.A. 2019 Supp. 21-5222(a), -6101, -6101(a)(6), 60-261, -455; K.S.A. 2014 Supp. 21-6101(a)(6); K.S.A. 2012 Supp. 21-6101(a)(3); K.S.A. 60-401(b), -404

Tags:  Appeals  constitutional law  criminal law  criminal procedure  evidence  jury instructions  sentences  statutes  suspension of license 

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February 28, 2020 Digests

Posted By Administration, Monday, March 2, 2020
Updated: Monday, March 2, 2020

Kansas Supreme Court

Attorney Discipline

TWO-YEAR SUSPENSION
IN RE LAUREL R. KUPKA
NO. 122,053—FEBRUARY 28, 2020

FACTS: A hearing panel determined that Kupka violated KRPC 1.1 (competence); 1.3 (diligence); 1.4(a) and (b) (communication); 4.1(a) (truthfulness in statements to others); 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); 8.4(d) (engaging in conduct prejudicial to the administration of justice); and 8.4(g) (engaging in conduct adversely reflecting on lawyer's fitness to practice law). The charges arose after Kupka expanded her law practice to include domestic cases while also taking on extra duties after other attorneys at the firm resigned. Kupka's workload grew even heavier around the time her first child was born, and she lost administrative support. The heavy workload, combined with a lack of any support, resulted in Kupka feeling anxious and depressed. As those conditions worsened, Kupka failed to adequately represent clients. She did not file things despite saying that she did, she altered documents in an attempt to make them look file-stamped, and she falsified judge's signatures. Kupka also failed to communicate with clients, and when she did speak with them, she lied about the status of their cases.

HEARING PANEL: Kupka self-reported her misconduct, in addition to another complaint being filed. She fully cooperated and admitted to the misconduct. The hearing panel acknowledged that Kupka engaged in dishonest conduct by cutting and pasting file stamps onto documents and forging clerk and judge signatures. But her actions were driven by an overwhelming workload, a lack of supervision or assistance, and depression. She fully admitted her misconduct and cooperated with the disciplinary process. The disciplinary administrator asked for a two-year suspension, and that the suspension be suspended after one year so that Kupka could complete a one-year term of probation. Kupka asked that she be allowed to continue practicing under the terms of a probation plan. The hearing panel, however, reiterated its position that dishonesty cannot be corrected by probation alone. The hearing panel recommended that Kupka be suspended for two years, but that she be returned to active practice after serving six months of the suspension, with a two-year term of probation to follow.

HELD: The panel's factual findings and conclusions of law were deemed admitted. The court agreed that a two-year suspension was the appropriate discipline. Kupka will be allowed to apply for reinstatement after completing nine months of the suspension. A minority of the court would have required a longer period of suspension before applying for reinstatement.

 

criminal 

constitutional lawcriminal lawcriminal procedurejury instructionsprosecutorssentences
state v. becker
ford district court—affirmed in part, vacated in part
NO. 118,235—february 28, 2020

FACTS: On evidence—including Becker’s confession, jury found him guilty of first-degree premeditated murder. Sentence included a Hard 25 life prison term and lifetime postrelease supervision. On appeal, he claimed prosecutor’s comments during closing argument regarding plea deals taken by codefendants was error. Becker also claimed the district court erred in failing to instruct jury on lesser included crimes, and on voluntary intoxication. He also claimed for first time that failure to instruct on lesser included crimes violated his constitutional rights to due process and jury trial. He claimed cumulative error denied him a fair trial, and claimed the district court erred in ordering lifetime postrelease supervision.

ISSUES: (1) Prosecutorial error; (2) jury instructionslesser included offenses; (3) Constitutional claims; (4) jury instructionvoluntary intoxication; (5) cumulative error; (6) sentencing

HELD: Prosecutor’s comments did not fall outside wide latitude afforded prosecutors, and was not an attempt to obtain a conviction in a manner that offended Becker’s right to a fair trial. Taken in context, prosecutor’s comments did not direct jury to ignore the plea agreements or to give them no weight in determining witness credibility. Instead, prosecutor was rebutting attacks in defense counsel’s closing argument regarding a codefendant’s favorable plea agreement.

District court did not commit reversible error under K.S.A. 2018 Supp. 22-3414 by failing to instruct jury on lesser included offenses of second-degree murder and voluntary manslaughter. Both instructions would have been legally appropriate. Even if error is assumed without decidingthat a second-degree intentional murder instruction was factually appropriate, the error was harmless under facts in this case. And no sudden quarrel factually supported an instruction for voluntary manslaughter.

Court considers Becker’s newly raised constitutional claims. Consistent with Beck v. Alabama, 447 U.S. 625 (1980), and State v. Love, 305 Kan. 716 (2017), no merit to Becker’s  claim that the lack of a lesser included alternative required jury to render an all-or-nothing verdict in violation of Becker’s due process rights. Also, based on Love and a 6th Circuit Court of Appeals case, district court did not preempt function of jury in violation of Becker’s right to a jury trial.

Under facts in this case, district court did not err in failing to instruct jury on voluntary intoxication. Evidence viewed in light most favorable to Becker establishes methamphetamine consumption but not intoxication to impair his ability to form the requisite intent. Nor did parents’ unsworn statements at sentencing hearing establish a level of impairment at time of the crime that would have warranted a voluntary intoxication instruction.

No cumulative error in trial having only one assumed harmless error.

Sentencing court’s order of lifetime postrelease supervision is vacated. District court has no authority to order a term of postrelase supervision in conjunction with an off-grid, indeterminate life sentence.

STATUTES: K.S.A. 2018 Supp. 21-5202(h), 5402(a), -6620(c)(2)(A), 22-3414, -3414(3), -3504, 3504(1), -3601(b)(3), -3601(b)(4); K.S.A. 2015 Supp. 21-5109(b)(1); K.S.A. 2014 Supp. 21-5205(b); K.S.A. 60-2106(c)

appeals—criminal law—criminal procedure—evidence—jury instructions
state v. gray
sedgwick district court—affirmed
NO. 117,747—february 28, 2020

FACTS: Jury convicted Gray of first-degree premeditated murder, rape, and aggravated burglary. During trial, he unsuccessfully challenged district court’s admission under K.S.A. 60-455 of evidence of a previous rape. On appeal, argued for first time that under the identical offense doctrine, the district court should have sentenced him for intentional second-degree murder. Gray next argued the district court abused its discretion in finding evidence of the prior rape was more probative than prejudicial because no juror would have been able to follow the limiting instruction. Gray further claimed the district erred in failing to instruct jury on intentional second-degree murder as a lesser included offense of first-degree murder.

ISSUES: (1) Newly raised claim; (2) K.S.A. 60-455 evidence; (3) jury instructionlesser included offense

HELD: Gray’s identical offense doctrine claim is not considered. K.S.A. 2019 Supp. 21-6820(e)(3) does not support review because Gray does not challenge the classification of his crime or conviction, and no exception to the preservation rule is utilized.

Jury members are presumed to follow instructions, including limiting instructions regarding the admission and use of prior crimes evidence. Gray failed to offer any facts or legal authority to suggest otherwise.

Absence of an instruction on second-degree intentional murder as a lesser included offense of premeditated first-degree murder was not clear error. The instruction would have been legally appropriate, but even if factual appropriateness is assumed, the error was harmless in light of overwhelming evidence of premeditation.

STATUTES: K.S.A. 2019 Supp. 21-6820(e)(3), 60-455(a), -455(b), -455(d); K.S.A. 2015 Supp. 21- 5402(a)(1), -5403(a)(1); K.S.A. 60-455

 

Kansas Court of Appeals

Civil

MECHANIC'S LIENS
IN RE LIEN AGAINST THE DISTRICT AT CITY CENTER, LLC
JOHNSON DISTRICT COURT—REVERSED AND REMANDED
NO. 
121,184—FEBRUARY 28, 2020

FACTS: The District at City Center, LLC, hired a construction company to build a mixed-use development. The construction company hired Kansas City Steel Werx, Inc. as a steel and labor subcontractor. Change orders from KC Steel to the general contractor added approximately $25,000 to the cost of the contract. To ensure complete payment, KC Steel filed a mechanic's lien against the development citing unpaid labor and materials of approximately $400,000. The itemizations filed with the lien included documentation but was incomplete. Instead of challenging the lien as a whole or specific items, the contractor filed a motion claiming the lien was "fraudulent" and asking the court to set it aside. Without waiting for a response, the district court granted the motion and removed the lien. KC Steel appealed.

ISSUE: (1) Ability of the district court to find that the lien was "fraudulent"

HELD: A party asserting a mechanic's lien must strictly comply with our mechanic's lien statutes before that lien becomes enforceable. K.S.A. 2019 Supp. 58-4301 allows a district court to quickly review a lien's status to determine whether it is fraudulent. Legislative history shows this statute was enacted to prevent abuses by militias and common-law groups. The quick review is intended to allow an efficient way to remove an obviously bogus lien that is being used as a tool of harassment. The district court improperly equated an invalid lien with a fraudulent one. The document filed by KC Steel is recognized by Kansas law, and the district court erred by ruling that the lien was fraudulent. The real question is whether KC Steel strictly complied with the mechanic's lien procedures enough to create a valid lien; that is the issue that must be decided on remand.

STATUTES: K.S.A. 2019 Supp. 58-4301, -4301(a), -4301(b), -4301(c), -4301(e), -4302; K.S.A. 60-1102, -1102(a), -1103(a), -1105, -1106, -1108

WORKERS COMPENSATION
AIKINS V. GATES CORPORATION
WORKERS COMPENSATION APPEALS BOARD—AFFIRMED
NO. 120,905—FEBRUARY 28, 2020

FACTS: Aikins was injured in a car accident while leaving work. In May 2018, an ALJ awarded Aikins compensation for her injuries. One week later, she served Gates with a demand for compensation based on that award. The next day, Gates filed for review with the Workers Compensation Board of Appeals. Before the Board could decide the appeal, Aikins filed a motion for penalties with the ALJ because Gates had not yet paid out her award. The ALJ held a hearing and ruled that Aikins was entitled to a penalty payment because Gates had not yet paid as required by K.S.A. 44-512a and had not obtained a stay of the judgment. Gates appealed the imposition of the penalty, arguing that compensation was not yet due so no penalty could accrue. The Board agreed, and Aikins appealed.

ISSUE: (1) Whether payment is due such that penalties could attach

HELD: K.S.A. 44-512a allows claimants to apply for a civil penalty if payments are overdue. In this case, the only issue to determine is whether Aikins's award was due. Statutes clarify that payment of an award is not due until at least 30 days after the Board hears the parties' arguments. There is no statute which requires the employer to seek and receive a stay of judgment; a stay is only required after payment obligations have accrued. Aikins was not due any payment until after the Board ruled on Gates's appeal, and the Board properly reversed the ALJ's award of penalties.

STATUTES: K.S.A. 2019 Supp. 44-551, -551(l)(1), -551(l)(2)(A), -551(l)(2)(B), -551(l)(2)(C), -551(p); K.S.A. 44-512a, -512a(a)

HABEAS CORPUS—MOOTNESS
BURCH V. HOWARD
PAWNEE DISTRICT COURT—AFFIRMED
NO. 120,704—FEBRUARY 28, 2020

FACTS: Burch was committed to the Sexual Predator Treatment Program in 2002. After more than a decade in the program, Burch filed a K.S.A. 60-1501 petition which raised several concerns. Relevant to this case was his claim that the SPTP does not provide adequate treatment for securing an eventual release from the Program. The SPTP operated on a leveled system where treatment was provided in phases, and participants gained independence by completing levels. At a hearing before the district court, the evidence showed that Burch has not participated in any meaningful treatment since July 2009. Based on this lack of participation, the district court ruled that Burch failed to meet his burden to prove shocking or intolerable conduct and denied the petition. Burch appeals.

ISSUES: (1) Mootness; (2) adequacy of treatment provided in the SPTP

HELD: Although the treatment system is different now from when Burch filed his petition, the changes are more style than substance and do not render this appeal moot. Because he declined treatment, Burch does not have standing to challenge the adequacy of the SPTP. The SPTP is consistent with the statutory criteria of the Sexually Violent Predator Act and does not shock the conscience.

STATUTES: K.S.A. 2019 Supp. 59-29a06, -29a07(a), -29a08(a), -29a08(d), -29a08(f); K.S.A. 60-1501

 

criminal

criminal law—criminal procedure—restitution—sentences—statutes
state v. henry
sedgwick district court—affirmed
no. 119,895—february 28, 2020

FACTS: Henry was charged and convicted on one count of felony theft for stealing money from store deposits on 12 different occasions while employed as armored truck driver. District court imposed 60 months’ probation and ordered payment of $78,315 in restitution. On appeal, Henry claimed insufficient evidence supported his conviction because the single larceny doctrine did not apply to thefts that occurred on 12 separate occasions, and each of the individual takings failed to meet the $25,000 threshold of the felony theft charged. He also argued the restitution plan was unworkable because it would take over 43 years to complete, making a multi-decade term of probation per se unreasonable.

ISSUES: (1) Single larceny doctrine; (2) restitution

HELD: Henry’s theft conviction is affirmed. The single larceny doctrine is a rule of evidence and may be invoked whenever the facts warrant it. Disagreement stated with legal conclusion in State v. Ameen, 27 Kan.App.2d 181, rev. denied 269 Kan. 934 (2000). The doctrine is not only limited to instances where multiple misdemeanor takings are charged as a single felony but also permits multiple instances of felony takings to be charged as a single higher severity level felony.  On evidence in this case, Henry should have been charged in the alternative with a lower severity level theft for each separate taking, and the jury should have been instructed in the alternative on the single larceny doctrine and the elements of each lesser theft for each taking separately, but Henry waived or abandoned any claims of error concerning the charging document or instructions. Sufficient evidence supported the key factual determination that Henry’s acts arose out of a single incriminating impulse or plan.

District court imposed a workable restitution plan. Henry admitted the monthly payments are workable, and K.S.A. 2019 Supp. 21-6608(c)(7) explicitly allows for a term of probation to be extended indefinitely to secure payment of restitution.

STATUTES: K.S.A. 2019 Supp. 21-6604(b)(1), -6608(c)(7); K.S.A. 2016 Supp. 21-5801(a)(1), -5801(b)(2), -5801(b)(3), -5801(b)(4)

Tags:  appeals  attorney discipline  Constitutional law  criminal law  criminal procedure  evidence  habeas corpus  jury instructions  mechanic's liens  mootness  prosecutors  restitution  sentences  statutes  workers comp 

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January 21 and January 28, 2020 Digests

Posted By Administration, Tuesday, January 28, 2020

Kansas Supreme Court

 

Civil

INSURANCE
WILLIAMS V. GEICO GENERAL INSURANCE COMPANY
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS REVERSED, DISTRICT COURT IS AFFIRMED
NO. 117,149—JANUARY 21, 2020

FACTS: Williams was insured by GEICO at the time he was injured in an automobile accident. His injuries required surgery and physical rehabilitation. While he recovered, Williams's treating physicians specified that Williams would be unable to perform household tasks such as lawn care, shoveling, cooking or cleaning. Williams was married, but he and his wife, Mary, had separate schedules and finances, and Williams generally took care of his own meals, laundry, and cleaning. Williams and Mary agreed that, for $25 per day, she would cook, do laundry, administer medication, drive, and assist Williams with hygiene needs. Williams wanted his insurance to pay for this expense, and he filed a claim for personal injury protection (PIP) substitution benefits available to him under his policy. GEICO refused to pay, arguing that Mary had a legal duty to care for her spouse and provide replacement services. Williams filed suit and the district court agreed with him, ruling that the law does not exclude an injured person's spouse from being compensated for substitution services. GEICO appealed and the Court of Appeals reversed the district court, agreeing with GEICO that married persons cannot be compensated for substitution services. The Supreme Court granted Williams's petition for review.

ISSUE: (1) Ability of a spouse to be compensated for substitution services

HELD: K.S.A. 40-3103(w) does not specifically preclude a spouse from providing substitution services, so the only relevant inquiry is whether Williams incurred an obligation to pay Mary for the substitution services that she provided. The facts specific to this case show that Williams incurred an obligation to pay Mary by entering into a contract with her to perform specific services for him that she would not have otherwise performed. The district court correctly ruled that GEICO must pay for Mary's expenses.

STATUTE: K.S.A. 40-3103(w)

 

criminal

appeals—criminal law—evidence—statutes
state v. downing
reno district court—reversed; court of appeals—affirmed
No. 116,629—january 24, 2020

FACTS: Downing appealed his burglary conviction that was based for taking items from a rural farmhouse. Court of appeals reversed in unpublished opinion, based on building owner’s testimony that no one lived there when the crime occurred, and owner had no plans to live there or rent it out. Downing’s petition for review granted.

ISSUE: (1) Burglary—proof of a dwelling

HELD: Kansas Supreme Court has not previously considered whether the farmhouse qualified as a dwelling as defined by K.S.A. 2018 Supp. 21-5111(k) when facts indicate it was not being used for such purposes when the crime occurred, and owner had no current plans to use or rent it out even if he preferred to do so. Circumstances identified in court of appeals cases on this issue were examined, finding definition and burglary statutes support a present-intent requirement to distinguish between a dwelling and a non-dwelling structure. Absent proof the place burgled was used as a human habitation, home or residence when the crime occurred, a conviction for burglary under K.S.A. 2018 Supp. 21-5807(a)(1) requires a showing of proof that someone had a present, subjective intent at the time of the crime to use the place burgled for such a purpose. Here, State failed to prove the farmhouse was a dwelling. District court is reversed and court of appeals is affirmed. State’s backup position that panel should have remanded for resentencing on lesser included crime of burglary of a structure is not considered because this alternative argument was not presented below.

STATUTES: K.S.A. 2018 Supp. 21-5111(k), -5807(a)(1), -5807(a)(2); K.S.A. 20-3018(b), 60-2101(b)

 

criminal procedure—sentences—statutes
state v willliams
sedgwick district court—affirmed in part, reversed in part, remanded
court of appeals—affirmed in part, reversed in part
no. 115,119—january 24, 2020

FACTS: Williams convicted of unintentional second-degree murder in 2011. Court of appeals reversed and remanded for a new trail. On remand Williams again convicted of unintentional  second-degree murder. He appealed, arguing in part his statutory speedy trial rights were violated at his first trial which invalidated all proceedings thereafter. In unpublished opinion Court of appeals found the doctrine of res judicata barred the speedy trial claim. After Williams’ petition for review was granted he raised supplemental claim that under State v. Wetrich, 307 Kan. 552 (2018), district court erroneously compared Williams’ 1980 Mississippi felony conviction for unnatural intercourse to Kansas’ crime of aggravated criminal sodomy, erroneously scoring the out-of-state crime as person felony.

ISSUES: (1) Speedy trial; (2) sentencing—scoring out-of-state conviction

HELD: Court of appeals is affirmed as right for the wrong reason. When appealing a conviction from a second trial after the first conviction was reversed on appeal, a defendant cannot raise for first time an alleged statutory speedy trial violation that occurred during the first trial. Even if Williams’ speedy trial claim in his first trial is assumed correct, plain statutory language makes clear the statutory speedy trial clock in a case resets and starts over as soon as an appellate court issues a mandate to reverse the first conviction.

Williams’ is entitled to the benefit of a change in the law while his case is pending on direct appeal. Wetrich changed the law governing Williams’ sentence, but even though Wetrich did not render that sentence illegal, it did render Williams’ sentence erroneous. Williams’ sentence is vacated and case is remanded for resentencing.

STATUTES: K.S.A. 2019 Supp. 21-6811(e)(3)(B); K.S.A. 2018 Supp. 22-3504, -3504(1); K.S.A. 2015 Supp. 21-6811(e)(3); K.S.A. 2010 Supp. 21-3506; K.S.A. 22-3402(1), -3402(6)

 

Kansas Court of Appeals

Civil

IMMUNITY—KANSAS TORT CLAIMS ACT—NEGLIGENCE
ESTATE OF RANDOLPH V. CITY OF WICHITA
SEDGWICK DISTRICT COURT—AFFIRMED IN PART, REVERSED IN PART, REMANDED
NO. 118,842—JANUARY 21, 2020

FACTS: Icarus Randolph was 26 years old and had a history of significant mental illness. Randolph lived with his mother. As family members gathered at the home for a holiday cookout, Randolph was out of sorts to the extent that family members became concerned for his welfare. Concluding that he needed to be emergently admitted to a mental health facility, Randolph's family called the police. Officer Snyder was the lead officer who responded, and he was dismissive of the family's concerns. Randolph's agitation increased and he came into the yard, carrying a knife at his side. Officer Snyder Tasered Randolph, which had no effect on his movements. As Randolph continued to walk. Officer Snyder drew his weapon and shot Randolph four times. He did not survive. Randolph's estate and the relatives who witnessed the scene filed suit against Officer Snyder, the other officer, and the City of Wichita. After extensive litigation, the district court granted all defendants' motions for summary judgment. The Randolph estate appealed.

ISSUES: (1) Viability of pre-shooting negligence claims; (2) estate's claim for liability for conduct after Randolph came outside; (3) viability of negligent use of force claim; (4) family members' claims

HELD: Officer Snyder's refusal to call an ambulance or otherwise assist Randolph and his family was a discretionary function, which means his conduct is immune from liability under the Kansas Tort Claims Act. The officer's decision-making was reasonable, even if he was brusque or rude. Evidence shows that Randolph was unaware of what was happening in his front yard, even after Officer Snyder drew his gun. Randolph's inability to appreciate fear means Officer Snyder could not be liable for tortious assault. But there are disputed issues of material fact regarding whether Officer Snyder committed a tortious battery by both Tasing and shooting Randolph, calling in to question Officer Snyder's claim that he was entitled to self-defense privilege. There is no other immunity in the KTCA that warrants summary judgment at this stage of the estate's tortious battery claims. Although it is unclear, it appears that Kansas law does allow for the tort of negligent use of force. But that tort would not be appropriate here, where Officer Snyder's actions were very much intentional. There was no negligence to support a tort of negligent use of force. The district court erred by granting summary judgment on Randolph's mother's claim of tortious assault because there were disputed material facts. The district court also erred by granting summary judgment on family members' claims of tortious assault based on Officer Snyder's use of a handgun. Randolph's family must be given the chance to present evidence and allow the district court to determine whether Officer Snyder is entitled to a KTCA immunity or the privilege of self-defense.

STATUTES: K.S.A. 2018 Supp. 21-5221(a), -5222, -5222(b), -5227, -5230, -5231(a), 60-1901(a); K.S.A. 60-514(b), 75-6103(a), -6104, -6104(d), -6104(e), -6104(i), -6104(n)

 

SALES TAX—UTILITIES
IN RE TAX APPEAL OF SOUTHWESTERN BELL TELEPHONE CO., L.L.C.
BOARD OF TAX APPEALS—AFFIRMED
NO. 120,167—JANUARY 24, 2020

FACTS: Southwestern Bell (Bell) operates transmission and switching equipment to create telecommunication signals. Because the equipment runs continuously, it generates a great deal of heat. If the equipment overheats, it quits working. In order to avoid this, Bell has a dedicated HVAC system in areas where the equipment is located as part of the effort to keep the equipment cool and operational. Electricity that is "consumed in" providing telecommunication services is exempt from sales tax under Kansas statute. Bell sought sales tax refunds for all electricity used. The Kansas Department of Revenue approved a sales tax refund for electricity used to directly power equipment but denied a refund for electricity which powered the HVAC units, reasoning that these units merely maintained the switching and transmission equipment. The Kansas Board of Tax Appeals disagreed, holding that the electricity which powered the HVAC units was essential to the production of telecommunication services. The Department of Revenue appeals.

ISSUE: (1) Tax liability on HVAC equipment

HELD: The HVAC units and the transmission and switching equipment form a system that makes Bell's telecommunication services possible. Under the plain language of the tax statutes, the HVAC system is "essential or necessary" to the production of telecommunication services. This essential nature makes the electricity used to power the HVAC units exempt from sales tax. The Department of Revenue's arguments to the contrary go to public policy rationales, and those must be raised with the Kansas Legislature.

STATUTE: K.S.A. 2018 Supp. 79-3602(dd)(2), -3602(dd)(B), -3602(pp), -3606(n)

Tags:  Appeals  Bd of Tax Appeals  Criminal Law  Criminal Procedure  Evidence  Immunity  Insurance  Kansas Tort Claims Act  Negligence  Reno District Court  Sales Tax  Sedgwick District Court  Sentences  Statutes  Utilities 

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December 20 and December 27, 2019 Digests

Posted By Administrator, Friday, January 3, 2020

Kansas Supreme Court

criminal

constitutional law—criminal procedure—motions—search and seizure
State v. Chavez-Majors
butler district court—affirmed on issue subject to review and remanded
court of appeals—affirmed in part
No. 115,286—december 20, 2019

FACTS: Chavez-Majors convicted of aggravated battery while driving under the influence, based on motorcycle accident that caused injury to another person. Park Ranger first at scene requested EMS to draw blood from unconscious Chavez-Majors. District court denied motion to suppress the blood test results, finding the warrantless search was reasonable under probable cause plus exigent circumstances exception which satisfied the  three-prong test in Schmerber v. California, 384 U.S. 757 (1966). Court of appeals affirmed the denial of motion to suppress, but reversed the conviction because Chavez-Majors had not knowingly and voluntarily waived his right to jury trial. 54 Kan. App. 2d 543 (2017). Review granted on Chavez-Majors petition for review of panel’s decision affirming the denial of motion to suppress. State’s cross-petition for review of the jury trial issue was denied.

ISSUES: (1) Warrantless search—probable cause; (2) warrantless search—exigent circumstances

HELD: Court of Appeals decision regarding probable cause is affirmed. Probable cause determination is supported by Chavez-Majors driving at high rate of speed around curve and into parking lot he knew held parked cars and congregating people, and by strong odor of alcohol on Chavez-Majors’s breath.

As to whether exigent circumstances supported the warrantless blood draw, lower courts did not have benefit of Mitchell v. Wisconsin, 588 U.S. __ (2019). Because Chavez-Majors has not had a chance to fully litigate his claim under the change of law created by Mitchell, case is remanded to district court for an evidentiary hearing and district court ruling on exigency in light of Mitchell.

STATUTES: K.S.A. 2013 Supp. 8-1567; K.S.A. 22-3216

Kansas Court of Appeals

Civil

ATTORNEY PERFORMANCE—HABEAS CORPUS
BAKER V. STATE
LABETTE DISTRICT COURT—AFFIRMED
NO. 118,695—DECEMBER 20, 2019

FACTS: Baker pled guilty to felony murder, child abuse, possession of marijuana, and obstruction of official duty. Baker had originally been charged with aggravated criminal sodomy, a charge which could have resulted in a death penalty when combined with the murder charge, but it was dismissed under the plea agreement. At the sentencing hearing, defense counsel did not present any evidence regarding Baker's mental health. Baker received a hard 20 sentence for the felony murder, plus an additional 147 months for the other convictions. All of these sentences were presumptive for Baker's convictions, but Baker received the aggravated sentence rather than the standard sentence. Baker's convictions were affirmed on direct appeal. He timely filed a K.S.A. 60-1507 motion, plus three amended motions, in which he claimed that trial counsel was ineffective for failing to ensure that his grid sentences were ordered to run concurrently and for failing to investigate his mental health issues and present mitigating evidence. The district court denied the motion after an evidentiary hearing, and Baker appeals.

ISSUES: (1) Timeliness of the K.S.A. 60-1507 motion; (2) merits of Baker's motion

HELD: The State did not raise the timeliness issue before the district court. They waived any appellate argument by not arguing timeliness in district court. The panel assumes without deciding that trial counsel's performance was deficient under the totality of the circumstances. The only issue to decide is whether trial counsel's deficient performance was so prejudicial that Baker was harmed. The district court did not correctly apply the Strickland test and did not properly evaluate the evidence. But even when the correct test is used, the district court correctly determined that no prejudice resulted from trial counsel's deficient performance.

DISSENT: (Leben, J.) Trial counsel made no argument for anything less than the maximum possible sentence. There was a great deal of evidence regarding Baker's life experiences and mental health conditions, and that could have made a difference at sentencing. Trial counsel was prejudicially ineffective for not presenting that evidence at sentencing. He would remand this case for resentencing before a different judge.

STATUTE: K.S.A. 2018 Supp. 60-1507(f)(1); K.S.A. 60-1507

criminal 

criminal procedure—sentences—statutes
state v. gibson
geary district court—sentence vacated and case remanded
No. 120,657—december 20, 2019

FACTS: When Gibson was arrested on drug charges, he misidentified himself as his brother. The brother was then arrested for failure to show up for a hearing. Relevant to this appeal, Gibson was convicted of identity theft and perjury. Presumptive sentence was probation, but district  court granted State’s motion for a dispositional-departure sentence of prison, finding the harm from Gibson’s crimes was greater than usual. Gibson appealed.

ISSUE: (1) Dispositional departure sentence

HELD: Statutory-counterpart rule discussed. K.S.A. 2018 Supp. 21-6815 provides lists of mitigating and aggravating circumstances the sentencing court may consider in deciding whether to depart. Although each list is nonexclusive, if something is listed as a factor on one of the two lists, the absence of that factor on the counterpart list means that it may not be the basis for departure in that departure direction. Because less-than-typical harm is in list of mitigating factors but greater-than-typical harm is not included in list of aggravating factors, greater-than-typical harm may not be the basis for an upward-departure sentence. Sentence vacated and case remanded for resentencing.   

STATUTES: K.S.A. 2018 Supp. 21-6815, -6815(c)(1)(E); K.S.A. 2005 Supp. 21-4716(c)(2)(D); K.S.A. 2003 Supp. 21-4716(c)(1)(B); K.S.A. 1997 Supp. 21-4716(b)(1)(E); K.S.A. 1994 Supp. 21-4716(b)(2)(A)

constitutional law—due process—criminal procedure—probation—statutes
state v. gonzalez
sedgwick district court—remanded with directions
No. 120,179—december 27, 2019

FACTS: Following a hearing and determination of competency, Gonzalez convicted and sentenced to 52 month prison term with dispositional departure to probation for 36 months. Some seven months later he was arrested for violating probation. Noting the statutory processes for competency evaluations do not explicitly apply to probation revocation proceedings, district court revoked probation without addressing competency concerns raised by appointed counsel. Gonzalez appealed, claiming a constitutionally protected right to be mentally competent at his probation hearing.

ISSUE: (1) Probation revocation—constitutional due process

HELD: Gonzalez’ Fourteenth Amendment claim was not waived by counsel’s assertion of rights notwithstanding her failure to mention “constitution” or “due process.” Competency for due process purposes in revoking probation, an issue not yet addressed by U.S. Supreme Court or Kansas Supreme Court, is examined. The State may not revoke probation of a convicted felon who is not mentally competent at the time of the revocation hearing. In this case, district court acknowledged there were legitimate reasons to believe Gonzalez may not have been competent. The absence of a statutory procedure for competency evaluations in criminal cases after defendants have been sentenced is not a barrier to district court’s inherent authority to order a competency evaluation as a means of extending constitutional due process to a probationer facing revocation. District court erred in revoking Gonzalez’ probation without determining he was mentally competent. On remand, district court should determine if a retrospective competency evaluation can be done. If State agrees to forgo that accommodation, or district court determines such an evaluation is not feasible, then the revocation must be set aside with a new revocation proceeding and competency evaluations ordered if genuine competency issues remain. Due process requirements for statutory sanctions short of revocation are distinguished and not addressed.  

STATUTES: K.S.A. 2018 Supp. 22-3303, -3716(b)(2), -3716(c)(1)(B), - 3716(c)(11), K.S.A. 22-3202, -3301 et seq., -3302(1)

criminal procedure—probation—statutes
state v. tearney
wyandotte district court—affirmed
No. 120,340—december 20, 2019

FACTS: In 2014, district court imposed prison term but granted dispositional departure for 36 months’ probation. Probation revoked in 2016. In unpublished opinion, court of appeals reversed the revocation and remanded because district court erroneously believed Tearney had served two intermediate sanctions. While that appeal was pending, Legislature enacted the dispositional departure exception, K.S.A. 2017 Supp. 22-3716(c)(9)(B), on July 1, 2017. On remand, district court applied the new exception and again revoked probation. Tearney appealed, claiming the exception does not apply retroactively.

ISSUE: (1) Probation revocation—retroactive application of dispositional departure exception

HELD: K.S.A. 2017 Supp. 22-3716(c)(9)(B) permits a district court to revoke a defendant’s probation without having imposed a graduated sanction if probation was originally granted as the result of a dispositional departure. This exception applies to probation violations which occur after July 1, 2013, even when those violations occurred before the dispositional departure exception took effect. Retroactive application of the exception does not result in manifest injustice. Accordingly, the exception applies to Tearney’s 2016 probation violations even though her violations occurred before the exception took effect.

STATUTES: K.S.A. 2017 Supp. 22-3716(c)(9)(A), -3716(c)(9)(B), -3716(c)(12); K.S.A. 2014 Supp. 22-3716(c)

Tags:  Butler District Court  Constitutional law  criminal procedure  due process  Geary District Court  habeas corpus  Labette District Court  motions  probation  search and seizure  Sedgwick District Court  sentences  statutes 

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December 6, 2019 Digests

Posted By Administration, Monday, December 9, 2019

Kansas Supreme Court

 

Attorney Discipline

ONE-YEAR SUSPENSION, STAYED DURING AN EXTENDED PROBATION
IN RE ANDREW M. DELANEY
NO. 121,208
DECEMBER 6, 2019

FACTS: A hearing panel determined that Delaney violated KRPC 1.1 (competence); 1.3 (diligence); 1.4(a) (communication); and 1.7(a) (conflict of interest). Delaney was placed on probation in November 2014 and remained on probation at the time these matters arose. The allegations of new discipline involved Delaney's representation of a client in a divorce action and his failure to free his client from debt on a vehicle retained by the ex-spouse. In addition, Delaney failed to properly negotiate a plea agreement on behalf of three other clients, none of whom were aware of the potential conflict of interest.

HEARING PANEL: The hearing panel found facts sufficient to sustain all alleged rule violations. The panel found several aggravating factors, including prior discipline. But there were also mitigating circumstances such as the absence of a dishonest motive and some mental health issues. The disciplinary administrator recommended a one-year suspension, with that suspension suspended so that Delaney's probation could be extended for two years. This recommendation was joined by Delaney and his counsel, and the panel determined that the probation plan proposed by Delaney was workable and appropriate.

HELD: In the absence of any exceptions, the hearing panel's findings of fact and conclusions were accepted. After hearing arguments, a majority of the court agreed that the probation plan proposed by the disciplinary administrator and Delaney was appropriate. Delaney's license to practice law in Kansas was suspended for one year, with that suspension stayed in favor of a two-year term of probation. A minority of the court would have imposed a less severe sanction.

ORDER OF DISBARMENT
IN RE JOAN M. HAWKINS
NO. 121,064—DECEMBER 6, 2019

FACTS: After Hawkins failed to participate or appear, a hearing panel found that Hawkins violated KRPC 1.3 (diligence); 1.15(a) and (b) (safekeeping property); 1.16(d) (termination of representation); 8.1(b) (failure to respond to disciplinary authority); Rule 207(b) (failure to cooperate in disciplinary investigation); Rule 211(b) (failure to answer in disciplinary proceeding); and Rule 218(a) (failure to file motion to withdraw upon suspension). The allegations arose after Hawkins failed to file pleadings on behalf of clients. In addition, Hawkins was suspended but failed to withdraw or take the steps required of her during the suspension. In addition, Hawkins made deposits into her attorney trust account even after she was suspended, and she paid personal bills directly out of her trust account.

HEARING PANEL: Hawkins failed to appear or participate in the hearing panel process. This failure, combined with the evidence presented to the hearing panel, resulted in the disciplinary administrator seeking discipline of either indefinite suspension or disbarment. The hearing panel recommended that Hawkins be disbarred.

HELD: The Clerk of the Supreme Court made repeated efforts to serve Hawkins with the notice of hearing. All certified mail was returned unclaimed and an attempt to make personal service was similarly unsuccessful. The court found that adequate notice was given of both the formal complaint and the hearing. Because Hawkins did not participate, panel's findings of fact and conclusions of law were deemed admitted. And in the absence of an appearance at the disciplinary hearing, the court adopted the disciplinary administrator's recommendation that Hawkins be disbarred.

Court Reporter Discipline

PUBLIC REPRIMAND
IN RE APRIL C. SHEPARD
CCR NO. 1318 – DECEMBER 6, 2019

FACTS: April Shepard works as a court reporter in Wyandotte County. She previously served in that capacity in Shawnee County. In June 2018, the State Board of Examiners of Court Reporters filed a formal complaint against Shepard alleging a violation of Board Rule No. 9.F.9. The facts showed that Shepard worked as a court reporter on a high-profile murder trial. After the defendant's conviction was overturned on appeal, a newspaper article quoted from Facebook posts made by Shepard in which she opined that the defendant was guilty and would be convicted again. Shepard admitted that she made the posts but defended herself by claiming that she behaved in an impartial manner during the trial and noted that she no longer worked for Shawnee County.

BOARD: The Board's disciplinary counsel asked that Shepard be subjected to public discipline, in order to provide transparency and increase public confidence in the profession. Shepard asked that any discipline be private, noting that she stipulated to the rule violation and arguing that her conduct was not severe enough to warrant public discipline. After considering arguments, the Board recommended that Shepard receive a public reprimand.

HELD: In the absence of objections, the Board's findings and conclusions were adopted. The court found that Shepard's conduct was egregious and damaging to the profession, but also noted that she cooperated with the investigation and admitted to wrongdoing. The court agreed that a public reprimand was the appropriate discipline.

Civil

EMINENT DOMAIN—INVERSE CONDEMNATION—JURISDICTION
GFTLENEXA, LLC V. CITY OF LENEXA
JOHNSON DISTRICT COURT—AFFIRMED
NO. 119,278—DECEMBER 6, 2019

FACTS: Through a series of leases and subleases, GFTLenexa ended up as the landlord of a Bridgestone tire dealer. In October 2013, the City of Lenexa filed a condemnation action with the goal of making street improvements and creating a permanent public utility easement. The district court granted the condemnation request and paid appropriate compensation to affected parties; neither GFTLenexa nor Bridgestone participated and neither was awarded compensation. A year later, Bridgestone sought declaratory judgment against GFTLenexa claiming it was entitled to reduced rent because the property had been partially condemned. The district court dismissed the action on GFTLenexa's motion for summary judgment on the theory that GFTLenexa did not receive any proceeds from the condemnation. The Court of Appeals reversed and remanded and on remand, the district court ordered GFTLenexa to both reduce Bridgestone's monthly rent and refund past overpayments. This decision prompted GFTLenexa to file an inverse condemnation action against the City for a loss of its intangible property rights. The district court granted the City's motion for summary judgment. GFTLenexa filed a notice of appeal to the Kansas Supreme Court.

ISSUES: (1) Jurisdiction; (2) need for inverse condemnation

HELD: Inverse condemnation actions are not creatures of statute. K.S.A. 2018 Supp. 26-504 requires that appeals in eminent domain cases go directly to the Kansas Supreme Court. Inverse condemnation actions are not eminent domain actions, and cases involving an inverse condemnation must be filed in the court of appeals. Even though the case was filed in the wrong court, the court exercises its power of concurrent jurisdiction to rule on the controversy before it rather than transfer it to the court of appeals. The eminent domain petition did not name GFTLenexa as a party and GFTLenexa chose not to participate in the process. The City's failure to name GFTLenexa is not determinative; GFTLenexa could have—and should have—sought to intervene in the condemnation. Requiring the City to pay again in an inverse condemnation action violates the undivided fee rule.

STATUTES: Kansas Constitution, Article 3, § 3; K.S.A. 2018 Supp. 26-504; K.S.A. 20-3018(a), 26-517, 60-2101(a), -2101(b)

criminal 

criminal procedure—motions—sentences—statutes
state v. carpenter
sedgwick district court—affirmed; court of appeals—affirmed
no. 115,713—december 6, 2019

FACTS: Complaint charged Carpenter of burglary, theft, and criminal damage to property. A separate complaint charged February 2008 offenses of aggravated indecent liberties with a child and criminal sodomy. Carpenter convicted on all charges. District court’s pronouncement stated a 55 month underlying sentence and 36 months of post-release supervision, but journal entry reflected lifetime postrelease supervision in case involving sexually violent offenses. Probation revoked two years later, with imposition of underlying sentence and lifetime postrelease supervision. Carpenter filed motion to correct illegal sentence by confirming the orally pronounced sentence of 36 months’ postrelease supervision, distinguishing postrelease for persons sent to prison versus those granted probation. State argued the lifetime postrelease supervision was mandatory and the 36-month supervision itself was illegal. District court agreed and denied the motion. Court of Appeals affirmed in unpublished opinion. Review granted. While appeal was pending, parties ordered to show cause why sole issue on review was not controlled by State v. Brook, 309 Kan. 780 (2019).

ISSUE: (1) Lifetime postrelease supervision under K.S.A. 22-3717(d)(1)

HELD: District court and Court of Appeals are affirmed based on Brook. Due to nature and timing of his offenses, Carpenter is subject to lifetime postrelease supervision under K.S.A. 22-3717. For determining length of postrelease supervision, Legislature clearly distinguished between categories of sexually violent offenses in K.S.A. 22-3717(d)(1)(D) and (G) based on date of their commission, not by sentences of probation versus prison. K.S.A. 22-3717(d)(1)(G) applies to persons convicted of a sexually violent crime committed on or after July 1, 2006. There are no persons convicted of a sexually violent crime on or after that date to whom both subsection K.S.A. 22-3717(d)(1)(A) and subsection (d)(1)(G) apply. Construing the statute as a whole and giving effect to all subsections, there is no conflict or ambiguity in K.S.A. 22-3717(d)(1).

STATUTES: K.S.A. 2015 Supp. 22-3717(d)(1); K.S.A. 2013 Supp. 22-3717(d)(1); K.S.A.20-3018(b), 21-4704, 22-3504, -3717, -3717(d)(1), -3717(d)(1)(A), -3717(d)(1)(G), -3717(d)(2)(C), -3717(d)(2)(D), 60-2101(b)

criminal law—criminal procedure—evidence—jury instructions
state v. claerhout
johnson district court—affirmed; court of appeals—affirmed
no. 115,227—december 6, 2019

FACTS: Claerhout was convicted of reckless driving and second-degree murder for unintentional but reckless homicide. District court allowed State to introduce Claerhout’s prior diversion agreement for purpose under K.S.A. 60-455(b); allowed an officer to evaluate the relative speeds of the two vehicles at the time of collision; and denied Claerhout’s request for voluntary intoxication instruction. On appeal Claerhout challenged:  (1) admission of the K.S.A. 60-455 evidence; (2) officer’s qualification to testify about scientific and mathematical conclusions; and (3) denial of the requested instruction. Court of appeals affirmed, 54 Kan.App. 2d 742 (2017). Review granted on all issues.

ISSUES: (1) Evidence of prior diversion agreement; (2) expert testimony; (3) voluntary intoxication instruction

HELD: Claerhout’s diversion agreement had probative value that outweighed its prejudicial effect. Statutory requirements and specific details outlined in a diversion for driving under the influence essentially serve the same purpose as a conviction in showing its relevance. In this case, any deficiency in district court’s abbreviated evaluation of possible prejudicial effect was harmless. No need at this time to decide how little or how much analysis a district count must display to satisfy due process mandates in State v. Boysaw, 309 Kan. 526 (2019), but courts are encouraged to state on the record the factors considered in weighing the admissibility of K.S.A. 60-455 evidence.

Kansas Supreme Court has not previously ruled on the degree to which an expert must be able to demonstrate knowledge of the principles underlying the expert’s expertise. It is not necessary that an expert witness demonstrate expertise in every theory, principle or scientific discipline underlying the knowledge, skill, experience, training or education that may qualify an expert witness to give testimony. Background of officer in this case sufficed to meet the statutory requirements for qualification as an expert witness.

The requested voluntary intoxication instruction was not factually appropriate. Voluntary intoxication is not a defense to reckless second-degree murder. Claerhout’s theory, that evidence of his intoxication tends to show he could not attain a reckless state of mind because of impaired mental function, is rejected. Instead, cited cases show common thread of courts treating intoxication as evidence of recklessness.

STATUTES: K.S.A. 2018 Supp. 8-1567(i)(1), -1567(i)(6), 21-5403(a)(2), -5403(b)(2), 60-455(a), -455(b), -456(b); K.S.A. 2016 Supp. 60-455(b); K.S.A. 60-455

criminal procedure—motions—postconviction remedies—statutes
state v. fox
cherokee district court—affirmed
No. 115,247—december 6, 2019

FACTS: In 2013, Fox filed a K.S.A. 22-3210 motion to withdraw his 1982 guilty plea, arguing in part for equitable tolling of the limitation period. District court denied the motion as untimely filed with no showing of excusable neglect. Fox appealed, further arguing he had been imprisoned in Florida for several years without access to a phone or library materials about Kansas law. He also claimed manifest injustice, citing ineffective assistance of counsel, duplicitous charges, and jurisdictional claims.

ISSUE: (1) Statue of limitations—excusable neglect

HELD: Grace period in 2009 amendment to K.S.A. 22-3210 allowed Fox until April 2010 to file his motion. District court did not abuse its discretion in finding Fox did not establish excusable neglect to permit his untimely filing. No facts support equitable tolling of the limitation period where Fox was held in a Kansas prison about seven years before the statute of limitations ran.  No need to address whether Fox established manifest injustice.

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

criminal procedure—juries—jury instructions—motions—trials
state v. pruitt
Butler District Court—affirmed
NO. 118,448—december 6, 2019

FACTS: Pruitt was convicted of first-degree premeditated murder. On appeal he claimed: (1) prosecutor error during closing argument; (2) judge should have instructed jury on lesser included offenses of reckless second-degree murder and reckless voluntary manslaughter, (3) erroneous instructions foreclosed jury’s power of nullification; (4) a new trial should have been granted because one juror slept during part of the proceedings; and (5) cumulative error denied him a fair trial.  

ISSUES: (1) Prosecutorial error; (2) instructions on lesser included offenses; (3) instructions regarding jury nullification; (4) motion for new trial—juror misconduct; (5) cumulative error

HELD: Prosecutor’s statement in summing up testimony about the alleged murder weapon, “This seems to be the shotgun, folks. I don’t think there’s a lot of question about that at this point,” was an impermissible personal opinion; but no reversible error in this case. Prosecutor’s statement that victim deserved jurors’ “consideration” was not error where statement’s context demonstrates that prosecutor was not attempting to invoke jury’s sympathy. Prosecutor’s statement, “Folks, if you’re convinced beyond a reasonable doubt that those three elements exist, you must find the defendant guilty of murder in the first degree, as he has been charged,” was not an impermissible misstatement of the law because it forbade jury nullification. A prosecutor’s closing argument is distinguished from court instructions.  

Even if error is assumed in district judge’s failure to give sua sponte two reckless homicide instructions, no reversible clear error on facts in this case.

District judge’s instructions to jury did not direct a verdict of conviction or prevent jury nullification, and were correct statements of the law and not erroneous under State v. Boothby, 310 Kan. 619 (2019).

Under facts in this case, district judge did not abuse his discretion in finding no fundamental failure due to jury misconduct occurred in defendant’s trial.

Errors found or assumed in this case did not cumulatively prejudice Pruitt and deprive him of a fair trial.   

STATUTE: K.S.A. 2018 Supp. 21-5109(b)(1), -5202(c)

Tags:  attorney discipline  Butler District  Cherokee District Court  court reporter discipline  criminal law  criminal procedure  eminent domain  evidence  inverse condemnation  Johnson District Court  juries  jurisdiction  jury instructions  motions  postconviction remedies  sentences  statutes  trials 

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November 8, 2019 Digests

Posted By Administration, Tuesday, November 12, 2019

Kansas Court of Appeals

 

criminal

constitutional law—criminal procedure—motions—trials —statutes
state v. HAMMERSCHMIDT
Ellis District Court—reversed and remanded
no. 120,016—november 8, 2019

FACTS: Hammerschmidt was charged with a misdemeanor DUI. He filed motion to suppress evidence from the stop, arguing he was not given proper notices before the breath test. He also referenced two pending decisions awaiting rehearing in Kansas Supreme Court. District court granted continuances on its own initiative, citing the pending rehearing decisions. 607 days after a motion to suppress was filed, and 360 days after State v. Nece, 306 Kan. 679 (2017) (Nece II), and State v. Ryce, 306 Kan. 682 (2017) (Ryce II), the district court denied the motion to suppress. Hammerschmidt filed motion to dismiss, alleging violation of speedy trial statute. District court granted that motion and dismissed the complaint. State appealed, arguing in part that K.S.A. 2018 Supp. 22-3402(g) bars dismissal.

ISSUE: Speedy trial statute

HELD: District court erred by dismissing the case on statutory speedy trial grounds. Hammerschmidt first requested delay in the case by filing motion to suppress, and that delay was originally attributable to him. Because the matter was taken under advisement for an unreasonable amount of time and because it was unclear if Hammerschmidt consented to the delay, district court later attributed the delay to the State. Although the delay here was several hundred days, the legislature removed the remedy of dismissal when a district court later attributes delays to the State that were originally attributable to a defendant. K.S.A. 2018 Supp. 22-3402(g). Hammerschmidt did not argue that prosecutorial misconduct precipitated the lengthy delay or that application of K.S.A. 2018 Supp. 22-3402(g) violated his constitutional speedy trial rights, and his statutory speedy trial claim is based on circumstances which expressly forbid dismissal on statutory speedy trial grounds.

STATUTE: K.S.A. 2018 Supp. 22-3402, -3402(b), -3402(g)

constitutional law - criminal procedure - evidence - fourth amendment - motions
state v. fisher
Sedgwick District Court—affirmed
no. 120,031—november 8, 2019

FACTS: Officers entered the house in response to a 911 call report that someone in the house had been shot. No injured person was found, but officers discovered Fisher with drugs in plain view. Fisher was charged with drug offenses. He filed a motion to suppress, claiming the officers lacked a lawful justification to enter the house because they failed to first ask the two women standing outside the house any clarifying questions or whether they were injured. District court denied the motion, finding the clearing of the house to find if someone was hurt or dying was not unreasonable under the circumstances. Fisher was convicted in bench trial on stipulated facts. He filed timely appeal.

ISSUE: Emergency aid exception to warrantless search

HELD: District court did not err in denying the motion to suppress. The emergency aid exception test stated in State v. Neighbors, 299 Kan. 234 (2014), is applied, but an Eleventh Circuit Court of Appeals case is identified as more factually similar to the present case. Officers had authority under the emergency aid exception to act until assured that no one needed assistance. The mere presence of people outside the house where gunshots were reported did not remove the officer’s reasonable basis to search the house for victims. The possibility of someone suffering from a gunshot wound inside necessitated an immediate search.

STATUTES: None

criminal procedure—sentences—statutes
state v. wilmore
shawnee district court—affirmed
no. 120,171—november 8, 2019

FACTS: Wilmore was convicted of two counts of indecent liberties with a child. On appeal, he claimed the district court imposed an illegal sentence in calculating criminal history by using two prior domestic battery cases that had been used in an earlier case to elevate the classification of a third domestic battering conviction to a felony.

ISSUE: Sentencing—criminal history calculation of prior domestic battery charges

HELD: Wilmore’s “double-counting” challenge is rejected for same reasons stated in numerous unpublished court of appeals decisions. District court did not violate K.S.A. 2018 Supp. 21-6810(d) in calculating Wilmore’s criminal history score. Wilmore’s alternative interpretation of the statute is unreasonable. Under court’s longstanding interpretation of K.S.A. 2018 Supp. 21-6819(d), the unambiguous statutory language does not prohibit a district court from aggregating prior domestic battery person misdemeanors to create a person felony for criminal history purposes even when those same domestic battery convictions were used in an earlier case to elevate a domestic battery charge from a misdemeanor to a felony.

STATUTES: K.S.A. 2018 Supp. 21-5414(c)(1)(C), -6810(d)(10), -6811(a), 22-3504(1)
K.S.A. 2015 Supp. 21-6810(d)(9)

Tags:  Constitutional Law  criminal procedure  Ellis District Court  evidence  Fourth Amendment  motions  Sedgwick District Court  sentences  Shawnee District Court  statutes  trials 

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November 22, 2017 Digest

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

Kansas Court of Appeals

CRIMINAL

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

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

ISSUE: Sentencing - use of prior misdemeanor domestic battery convictions

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

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

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

Tags:  crimes and punishment  Dissent  Sedgwick  Sedgwick District  sentences  statutes 

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