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July 31, 2020

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

Kansas Court of Appeals

Civil

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

criminal

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

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

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

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

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

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

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

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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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