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November 1, 2019 Digests

Posted By Administration, Monday, November 4, 2019

Kansas Supreme Court

 

Civil

JURISDICTION—WORKERS COMPENSATION
VIA CHRISTI HOSPITALS V. KAN-PAK, LLC
WORKERS COMPENSATION BOARD—COURT OF APPEALS IS REVERSED,
WORKERS COMPENSATION BOARD IS AFFIRMED
NO. 116,692—NOVEMBER 1, 2019
 

FACTS: Darin Pinion was severely burned while working at Kan-Pak. Via Christi provided medical care; his total bills exceeded $1 million. Kan-Pak's workers compensation insurance was provided by Travelers, who contracted with Paradigm to coordinate complicated cases. Paradigm paid only $136,451.60 of Pinion's considerable bill, under the 2011 Schedule of Medical Fees. For the 2011 Maximum Fee Schedule, language was added which allowed insurers to pay the lesser of the 70 percent stop loss calculation or the MS-DRG formula. It is unknown how the "lesser of" language ended up in the statute, as no one from the agency claimed knowledge of the addition. Via Christi requested reimbursement of 70% of Pinion's total bill. An ALJ found that the language in the regulation controlled and that it was without authority to ignore the "lesser of" language. The Board agreed and Via Christi appealed. The Court of Appeals reasoned that if no one at the agency knew that the "lesser of" language was added, that change was not properly promulgated and was ineffective. The Court of Appeals was unwilling to enforce an accidental rule, believing the outcome would be arbitrary and capricious. Paradigm's petition for review was granted.

ISSUES: (1) Jurisdiction, (2) effectiveness of the 2011 regulation

HELD: Jurisdiction exists to hear the merits of the case. The director of workers compensation is ultimately responsible for preparing the fee schedule. He is not a party to this action and the faulty rulemaking was not raised as a cause of action. The issue of rulemaking by the directoraccidental or otherwisewas never properly before the Board on appeal from the hearing officer. These proceedings were initiated as a fee dispute under a narrowly-drawn statute. It was not arbitrary or capricious to follow a plainly-worded regulation and enforce it as written.

STATUTES: K.S.A. 2018 Supp. 44-510i, -510j, 77-603(a), -614, -614(b), -614(c), -621(c), -621(c)(8); K.S.A. 44-556, 77-602(j), -606

 

criminal

constitutional law—criminal procedure—juveniles—speedy trial
state v. owens
sedgwick district court—affirmed; court of appeals—affirmed
No. 115,441—november 1, 2019

FACTS: 17-year-old Owens charged with juvenile offenses related to stealing a car at gunpoint. Six months later, the juvenile case was dismissed and Owens was charged with aggravated robbery, criminal use of a weapon and criminal deprivation of property. Jury convicted him as charged in trial that began some 19 months after his arrest. Owens appealed, claiming in part the delay between his arrest and trial violated his constitutional right to a speedy trial. Court of appeals affirmed in an unpublished opinion, finding right to speedy trial attached upon filing of the adult criminal charges, and the 13-month delay from that point until Owens’ trial was presumptively prejudicial. Review granted on Owens’ speedy trial claim that the delay was 19 rather than 13 months, and on State’s cross-petition alleging the panel erred in finding the length of delay presumptively prejudicial.

ISSUE: (1) Speedy trial

HELD: The federal and state constitutional right to a speedy trial applies to juvenile offender proceedings under the Revised Kansas Juvenile Justice Code, citing State v. Robinson, 56 Kan. App. 2d 567 (2018)(filed after briefs submitted in present case). Thus the delay in bringing Owens to trial was more than 19 months. Factors in Barker v. Wingo, 407 U.S. 514 (1972), are applied, finding no violation of Owens’ constitutional speedy trial rights. A presumption of prejudice arose from the length of a delay that was excessive given the relative simplicity of the case, but reasons for the delay weigh against Owens under facts in this case. While he complained about the delay, evidence supports that he wanted his attorney to seek consolidation of his cases and that these efforts resulted in some delay. And Owens made no showing he was prejudiced by the delay. Judgment of court of appeals affirming the district court is affirmed.

STATUTES: K.S.A. 2018 Supp. 22-3402(g), 38-2301 et seq., K.S.A. 2012 Supp. 22-3208(7); K.S.A. 20-3018(b)

 

Kansas Court of Appeals

criminal

constitutional law—criminal procedure—discovery—evidence—sanctions
state v. auman
douglas district court—affirmed
No. 120,438—november 1, 2019

FACTS: While turning left with sun in his eyes, Auman hit a motorcyclist he had not seen. State charged him with aggravated battery while driving under the influence of alcohol and prescribed medications, and made repeated requests to police department for evidence. On Friday before Monday trial that was scheduled at the last date within speedy trial statute, dashcam videos were obtained and disclosed to the defense. In part, Auman filed motion to dismiss, arguing Brady violation because videos were produced too late to investigate three identified witnesses at the scene and comments between two officers that would tend to show the sun’s glare, not intoxication, caused the collision. Given State’s delay in providing information and video’s potential exculpatory value, compounded by the speedy trial issue, district court dismissed the criminal case. State appealed, claiming the district court abused its discretion in taking such drastic action.

ISSUE: Duty to disclose evidence favorable to the defense

HELD: District court’s dismissal of the case is affirmed. Due Process Clause does not force a defendant to bear burden of a lack of cooperation between prosecutor and law enforcement, which in this case resulted in the eleventh-hour disclosure of potentially exculpatory information that was within State’s possession since Auman’s collision. State could have waited to file case until it received all discovery information from law enforcement, or—through cooperative efforts of prosecutors and law enforcement—could have arranged for all discovery to be provided within time frame ordered by district court.

STATUTES: K.S.A. 2018 Supp. 8-1567(a), 21-5107(d), - 5413(b)(3)(A), 22-3212(i); K.S.A. 2015 Supp. 21-5413(b)(3)(A)

Tags:  constitutional law  criminal procedure  discovery  Douglas County Court  evidence  jurisdiction  juveniles  sanctions  Sedgwick District Court  speedy trial  Workers Compensation  Workers Compensation Board 

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July 12, 2019 Digests

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

Kansas Supreme Court

CIVIL

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

STATUTES: K.S.A. 60-1507

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

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

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

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

STATUTES: K.S.A. 60-1507

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

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

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

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

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

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

NO. 115,662 —July 12, 2019

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

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

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

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

criminal

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ISSUE: (1) Motion to correct illegal sentence

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

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

Kansas Court of Appeals

CIVIL

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

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

ISSUE: (1) Adequacy of service

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

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

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

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

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

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

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

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

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May 4, 2018 Digests

Posted By Administration, Monday, May 7, 2018
Updated: Monday, May 7, 2018

Kansas Supreme Court

ATTORNEY DISCIPLINE

RELEASE FROM PROBATION
IN THE MATTER OF LOUIS M. CLOTHIER
NO. 112,658—MAY 1, 2018

FACTS: In March 2015, Louis M. Clothier was placed on probation for a term of three years. In April 2018, Clothier filed a motion for discharge from probation, along with affidavits showing compliance with all of the terms of his probation. The Disciplinary Administrator verified that Clothier completed all required tasks and offered no objection.

HELD: After considering the motion, affidavits, and supporting evidence, Clothier is discharged from probation.

ORDER OF SUSPENSION
IN THE MATTER OF CURTIS N. HOLMES
NO. 118,310—MAY 4, 2018

FACTS: A hearing panel determined that Holmes violated Kansas Rules of Professional Conduct 1.4 (communication), 1.16(a)(1) (withdrawing from representation), 5.5(a) (unauthorized practice of law), 8.1 (false statement in connection with a disciplinary matter), 8.4(c) (engaging in conduct involving dishonesty), and 8.4(d) (engaging in conduct prejudicial to the administration of justice), as well as Supreme Court Rule 218(a) (notification of clients upon suspension). In 2015, Holmes' license was administratively suspended after he failed to pay the entire annual registration fee. Despite the suspension, Holmes continued to represent clients in multiple cases. Once this representation came to light, Holmes made false statements to the court and the Disciplinary Administrator.

HEARING PANEL: The hearing panel found the existence of several aggravating factors, including dishonest or selfish motive and a pattern of misconduct. This appeared to be part of an on-going attempt by Holmes to minimize his conduct. The disciplinary administrator recommended a 6-month suspension. Holmes asked that he be placed on probation, but he failed to follow the procedure established by Rule 211(g)(3), which eliminated probation as an option. The hearing panel recommended that Holmes be suspended for a period of 1 year.

HELD: After considering Holmes' exceptions to the hearing panel report, the court found that the decisions of the hearing panel were correct. The disciplinary administrator continued to recommend a 6-month suspension. In deference to the panel that heard the case, a majority of the court agreed with the hearing panel and imposed discipline of a one year suspension. A minority of the court would have imposed the 6-month suspension recommended by the disciplinary administrator.

Kansas Court of Appeals 

CIVIL 

WORKERS COMPENSATION
JONES V U.S.D. NO. 259
WORKERS COMPENSATION BOARD—REVERSED AND REMANDED
NO. 117,915—MAY 4, 2018

FACTS: Jones was injured at work in 2011 while moving boxes of copy paper through the school where he was employed. Jones received conservative treatment and was released back to work without restrictions, although he still complained of symptoms. Jones ultimately underwent surgery to repair an injury to his neck, but he was released back to work without permanent restrictions. Jones was injured again in 2014, and he underwent a second surgery. After his recovery, he was again released back to work without permanent restrictions. But his job had been eliminated due to his extended absence. After failing to find other employment, Jones filed for workers compensation benefits. The ALJ found that Jones suffered a 15 percent permanent partial impairment of the whole body, with 61 percent task loss. The ALJ did not consider whether there was any preexisting task loss from the 2011 injury when calculating task loss for the 2014 injury. U.S.D. No. 259 appealed, claiming the ALJ erred by not including Jones' preexisting permanent restrictions from the 2011 injury when calculating the 2014 injury's task loss. The Board agreed, ruling that the task loss calculation was incorrect. Jones appealed.

ISSUES: (1) Collateral estoppel; (2) interpretation of K.S.A. 2013 Supp. 44-510e(a)(2)(D)

HELD: The issue regarding collateral estoppel was not raised before the board or in Jones' petition for judicial review. The argument cannot be raised for the first time in his appellate brief. The board misinterpreted K.S.A. 2013 Supp. 44-510e(a)(2)(D). Jones had no permanent work restrictions following his 2011 injury. Although there was testimony that he should have had those restrictions, he did not. The board interpreted the statute by reading in language that does not exist. This matter is remanded for further consideration of Jones' award without consideration of any pre-existing work restrictions.

STATUTES: K.S.A. 2017 Supp. 77-621(c)(4); 2013 Supp. 44-510e(a)(2)(D)

Tags:  Attorney Discipline  workers compensation 

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January 30, 2015, Digests

Posted By Administration, Tuesday, February 3, 2015
Updated: Thursday, February 13, 2020

Kansas Supreme Court

Civil

BREACH OF FIDUCIARY DUTY AND CLEAR AND CONVINCING EVIDENCE
BECKER V. KNOLL
FINNEY DISTRICT COURT – AFFIRMED
COURT OF APPEALS – REVERSED
NO. 105,643 – JANUARY 30, 2015

FACTS: This case involves an action by shareholders in a Kansas irrigation corporation against the president of the corporation (Knoll), alleging breach of a fiduciary duty and seeking removal of the president as an officer and director. The Kansas Supreme Court affirmed the Court of Appeals determination that the plaintiffs had made a prima facie case but reversed on the question of whether the facts supported judgment for the defendant. Holding that the courts below had applied incorrect legal standards, this court remanded the case to the district court so that it could reapply the law to the facts before it on the record. On remand, the district court again ruled for the defendant. The court held that Knoll engaged in no self-dealing, no misfeasance, and no malfeasance to the detriment of the corporation. The plaintiffs again appealed to the Court of Appeals. The Court of Appeals reversed, holding that Knoll's failure to maintain employment records undermined his position to such an extent that, as a matter of law, he acted in bad faith. The Court of Appeals remanded the case to the district court for determination of damages.

ISSUES: (1) Breach of fiduciary duty; and (2) clear and convincing evidence

HELD: Court held the district court applied the correct standards, which were supported by the evidence, and the Court of Appeals erroneously reversed the district court. Court found Knoll provided evidence that a rational fact-finder could apply to overcome the inference that the missing written data would be adverse to him. The Court of Appeals rejected or ignored the explicit testimony that Morehouse, the corporation's ditch rider, worked far more than the required 40 hours a week. In so doing, the Court of Appeals may have implied that the adverse inference rule is an absolute rule: Knoll's failure to keep hourly records constituted per se proof that Morehouse did not work the required number of hours and that Knoll acted in bad faith detrimental to the corporation. Or the Court of Appeals may have reevaluated Knoll's and Morehouse's testimony and concluded that the testimony was inadequate to overcome the inference of bad faith. Either approach is incorrect. The former analysis is wrong because the adverse inference rule establishes a method of supporting a claim, not a form of strict liability. The failure to produce a record under the party's control does not establish a breach of duty in itself. Knoll introduced substantial, credible evidence tending to show that he did not breach his duty. The latter analysis—which would be based on the quality of the evidence—is also wrong because it requires the appellate court to reweigh the evidence. The testimony regarding the number of hours that Morehouse worked was quite explicit, and the district court explained why it found that evidence credible. The district court properly carried out the task assigned to it on remand, and the Court of Appeals applied an incorrect standard of review. The opinion of the Court of Appeals is reversed. The decision of the district court is affirmed.

STATUTES: No statutes cited

Criminal

CITY OF WICHITA V. MOLITOR
SEDGWICK DISTRICT COURT – REVERSED AND REMANDED
COURT OF APPEALS – REVERSED
NO. 104,940 – JANUARY 30, 2015

FACTS: Officer stopped vehicle driven Molitor and conducted DUI investigation. Molitor failed horizontal gaze nystagmus (HGN) test, passed walk-and-turn and one-leg-stand tests, and then consented to officer’s request for a preliminary breath test (PBT). PBT results led to Molitor’s arrest and conviction for DUI. In appeal to district court, Molitor filed motion to suppress HGN results as inadmissible pursuant to State v. Chastain265 Kan. 16 (1998)and State v. Witte, 251 Kan. 313 (1992). District court denied the motion, ruling HGN results could be admitted to establish officer’s reasonable suspicion of DUI even though the results were inadmissible at trial. Waggoner appealed. Court of Appeals affirmed that HGN test could be considered as part of totality of circumstances in determining whether officer had requisite reasonable suspicion to request a PBT, and held the officer had enough other evidence to form a reasonable suspicion of DUI even if HGN test results were excluded. 46 Kan. App. 2d 958 (2012). Supreme Court granted Waggoner’s petition for review in which he argued the Frye reliability test had to be met before HGN test results could be used for any purpose, and sought review of panel’s determination that reasonable suspicion existed without considering the HGN test results.

ISSUES: (1) Admissibility of horizontal gaze nystagmus test results; and (2) harmless error

HELD: The HGN test is based on scientific principles. Before HGN test results may be considered by a Kansas court for any purpose, state must establish the reliability of such a test in district court. Here, district court and Court of Appeals erred in allowing state to rely on scientifically unproved HGN test results to establish reasonable suspicion that permitted officer to request that Molitor submit to a PBT pursuant to K.S.A. 2010 Supp. 8-1012(b).

Reviewing facts other than HGN test results in this case, the consideration of HGN testing was not harmless error. An appellate court should not deviate from criteria and scoring of National Highway Traffic Safety Administration’s standardized testing model to glean reasonable suspicion of driving under the influence from driver’s successful completion of standardized field sobriety tests. Determinations by district court and Court of Appeals, that officer possessed the requisite reasonable suspicion that Molitor was operating vehicle while under influence of alcohol when officer requested that Molitor submit to a PBT, are reversed.

CONCURRENCE AND DISSENT (Biles, J.) (joined by Nuss, C.J., and Rosen, J.): Agrees with majority’s holding that it was error to allow state to rely on HGN test results to establish reasonable suspicion for officer’s request for a PBT because state has not established test’s reliability as required by Witte. Disagrees with majority’s harmless error analysis, and would affirm Court of Appeals on this point and affirm the conviction. Majority is setting reasonable suspicion standard too high. Officer in this case observed evidence indicating impaired driving and intoxication, and was justified under the statute to request the PBT.

STATUTES: K.S.A. 2014 Supp. 60-456(b); K.S.A. 2010 Supp. 8-1012(b), -1567(a)(1), -1567(a)(2), -1567(a)(3); K.S.A. 8-1567(a)(1); K.S.A. 20-3018(b); K.S.A. 60-402, -456, -2101(b); and K.S.A. 8-1012 (Furse)

Kansas Court of Appeals

Civil

WORKERS COMPENSATION AND DAY-TO-DAY LIVING
MOORE V. VENTURE CORP. ET AL.
WORKERS COMPENSATION BOARD – AFFIRMED
NO. 110,883 – JANUARY 30, 2015

FACTS: Moore injured his knee at his road-construction job, either when he stepped off a backhoe or shortly thereafter when walking around the backhoe. An administrative law judge denied his request for workers compensation, finding that his injury was the result of walking, which she considered a normal activity of day-to-day living not covered by the Workers Compensation Act. The Workers Compensation Appeals Board reversed, finding that Moore's injury arose out of and in the course of his employment because stepping down and walking around the backhoe were part of a single job task—operating a backhoe—that was not a normal activity of day-to-day living.

ISSUES: (1) Workers compensation and day-to-day living

HELD: Court held the case law interpreting the pre-2011 version of the Kansas Workers Compensation Act remains applicable when determining whether a worker's injury arose out of and in the course of employment or was the result of the normal activities of day-to-day living. Under Bryant v. Midwest Staff Solutions Inc., 292 Kan. 585, 596, 257 P.3d 255 (2011), in determining whether an injury arose out of the course of employment, the primary question is whether the activity that resulted in the injury is connected to, or is inherent in, the performance of the job. Court found that substantial evidence supported the Board's finding. In this case, operating the backhoe was Moore's job duty, stepping down from and walking around the backhoe was part of the work required to operate the backhoe, and no evidence suggested that Moore's injury happened outside the time frame in which he was operating the backhoe. We therefore affirm the Board's decision that Moore's injury was covered under the Workers Compensation Act and not the result of a normal activity of day-to-day living.

STATUTES: K.S.A. 44-508, -556; and K.S.A. 77-621

Criminal

STATE V. WAGGONER
DOUGLAS DISTRICT COURT – AFFIRMED
NO. 111,548 – JANUARY 30, 2015

FACTS: Waggoner convicted of possession of methamphetamine and marijuana. On appeal he claimed district court erred in classifying an April 1993 Kansas juvenile adjudication as a person felony for criminal history purposes. Waggoner argued the holding in State v. Murdock, 299 Kan. 312 (2014), that out-of-state convictions committed prior to enactment of Kansas Sentencing Guidelines Act (KSGA) must be classified as nonperson offenses, applies to in-state pre-KSGA convictions as well.

ISSUES: (1) Criminal history score and pre-KSGA Kansas convictions

HELD: Murdock and State v. Williams, 291 Kan. 554 (2010), are discussed. As modified by Supreme Court order September 19, 2014, Murdock is limited to classification for criminal history purposes of out-of-state convictions committed prior to enactment of KSGA. Under facts in this case, district court did not err in classifying Waggoner’s prior Kansas juvenile adjudication of attempted aggravated battery as a person felony for criminal history purposes.

STATUTES: K.S.A. 2014 Supp. 21-6804(c), -6809, -6810(d)(6), -6811(e), -6811(g); K.S.A. 21-4710 et seq.-4710(d)(8), -4711(e); and K.S.A. 21-3301(c)(3), -3414 (Ensley 1988)

Tags:  breach of fiduciary duty  criminal history score  Douglas District Court  Finney District Court  HGN  horizontal gaze nystagmus  pre-KSGA  Sedgwick District Court  test results  Workers Compensation 

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