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November 21, 2018 Digests

Posted By Administration, Monday, November 26, 2018

Kansas Supreme Court

Attorney Discipline

ORDER OF INDEFINITE SUSPENSION
IN THE MATTER OF ROSIE M. QUINN
NO. 119,148—NOVEMBER 21, 2018

FACTS: Quinn was found to be in violation of KRPC 8.4(b) (committing a criminal act that reflects adversely on the lawyer's honesty or fitness). She was convicted of multiple federal felonies after failing to pay income taxes. Quinn's law license was temporarily suspended after she self-reported the convictions. While that disciplinary proceeding was pending, Quinn asked to have her status changed to disability inactive status. That request was granted, with the understanding that Quinn was required to obtain an independent mental health evaluation. Quinn failed to obtain that evaluation and as a result, her license was transferred back to a temporary suspension.

HEARING PANEL: The hearing panel noted Quinn's history of discipline and the nature of her convictions. The panel also cited Quinn's mental health issues and reputation in her community as mitigating factors. The disciplinary administrator's office recommended that Quinn be indefinitely suspended with the suspension made retroactive to three years prior to the date of the final hearing report. The hearing panel noted that Quinn presented compelling evidence of rehabilitation and relied heavily on the mitigating evidence in recommending that Quinn's license be suspended for three years, with that suspension made retroactive to October 5, 2011. The hearing panel believed that Quinn should be eligible for reinstatement without further proceedings.

HELD: The court adopted the hearing panel's findings and conclusions. The only question for the court to consider is whether Quinn should be required to undergo a reinstatement hearing before being allowed to return to practice. A majority of the court held that Quinn should be indefinitely suspended with an effective date of October 2011. Before being reinstated, Quinn must complete various tasks including a bar exam review course and continuing legal education hours. A minority of the court would have disbarred Quinn.

Civil

ADMINISTRATIVE LAW—TENURE
HARSAY V. UNIVERSITY OF KANSAS
DOUGLAS DISTRICT COURT—Affirmed
COURT OF APPEALS—REVERSED
NO. 114,292—NOVEMBER 21, 2018

FACTS: The University of Kansas hired Harsay to a tenure-track position in 2004. She began the tenure review process in 2009. Peer reviewers were hesitant to give unqualified recommendations for tenure; there were concerns about insufficient scholarship activities leading to an inability to secure funding. Nevertheless, the department-level committee recommended that Harsay receive tenure. The College Committee disagreed and voted to reject Harsay's application. That decision was ratified by the University Committee. Harsay appealed to the university but the chancellor upheld the decision to deny tenure. Harsay filed a timely petition for judicial review, but it was dismissed for failure to prosecute. Using the savings statute, Harsay refiled the action. The district court denied on the merits Harsay's challenge to the university's decision. The court of appeals reversed, noting inaccuracies in the College Committee's report and expressing concerns about the adequacy of the university's factual findings. The university's petition for review was granted.

ISSUES: (1) Savings statute; (2) substantial evidence

HELD: Provisions of the Code of Civil Procedure can apply to actions taken under the KJRA. And the plain language of K.S.A. 60-518 allows it to apply to any action. Although the reports of various tenure committees were short on details and contained errors, there is adequate support in the record as a whole for the ultimate decision to deny tenure to Harsay.

CONCURRENCE (Goering, D.J. assigned): There is substantial evidence in the record as a whole to support the university's decision on Harsay's tenure application. But the panel erred by finding that K.S.A. 60-518 can apply to cases brought under the KJRA.

STATUTES: K.S.A. 2017 Supp. 77-613, -621(c)(4), -621(c)(7), -621(c)(8), -621(d); K.S.A. 60-518

Criminal

constitutional law—criminal law—Fourth Amendment—statutes
state v. Evans
dickinson district court—affirmed and remanded
No. 119,458—November 21, 2018

FACTS: An officer conducted a warrantless search of Evans’ purse and wallet after an ambulance took Evans from auto accident scene. Evans was arrested and charged with drug offenses after officer found methamphetamine and drug paraphernalia in zippered pocket of the wallet. Evans filed motion to suppress, alleging the search violated the Fourth Amendment. State argued the warrantless search was valid under the plain-view exception and the officer’s administrative caretaking function of locating Evan’s driver’s license to complete an accident report. District court disagreed and granted the motion to suppress. State filed interlocutory appeal.

ISSUES: (1) Warrantless search—community caretaking function, (2) warrantless search— duty to complete accident report

HELD: District court’s judgment was affirmed. The caretaking role of law enforcement does not itself constitute an exception to the warrant requirement. Both Cady v. Dombrowski, 413 U.S. 433 (1973), and South Dakota v. Opperman, 428 U.S. 364 (1976), support caretaking/ inventory searches conducted under standard police procedures. Here, no evidence established the standard procedures of the police or county sheriff’s office. Accordingly, Dombrowski, Opperman and related cases do not support State’s contention that the search of Evan’s purse and wallet fits a well-delineated exception to the warrant requirement.

State v. Canaan, 265 Kan. 835 (1998), which relied on plain view and inventory search exceptions to the warrant requirement, did not create a new exception allowing a search simply because officers have a duty to complete the accident report. State failed to meet burden of establishing the inventory exception, and under facts in this case the drug evidence was not in plain view. Nor did the circumstances present an exigency or an emergency that required immediate verification of Evans’ identity or give rise to the emergency doctrine exception. Kansas statutes allow drivers a reasonable time to produce their own driver’s license, and legislature did not impose a duty on officers that would justify invading privacy guaranteed by Fourth Amendment.

STATUTES: K.S.A. 2017 Supp. 8-1604, -1611, -1611(a), -1611(a)(2), -1612, -1612(a), -1612(b), 22-3603; K.S.A. 8-244, 20-3018(c)

criminal law—criminal procedure—evidence—
jury instructions—prosecutors—statutes
state v. haygood
wyandotte district court—affirmed
No. 115,591—november 21, 2018

FACTS: A jury convicted Haygood of premeditated first-degree murder and criminal possession of a firearm. On appeal he claimed error in the admission of his long-term girlfriend’s testimony about prior domestic violence, and the denial of his request for jury instructions on the affirmative defense of self-defense and the lesser-included offense of involuntary manslaughter. Haygood also claimed the prosecutor, in closing argument, misstated the facts or law, argued facts not in evidence, commented on witness credibility, and attempted to shift the burden of guilty to the defendant.

ISSUES: (1) Admission of K.S.A. 60-455 evidence, (2) prosecutorial error in closing argument, (3) instructions on self-defense and involuntary manslaughter

HELD: Three-part test in State v. Gunby, 282 Kan. 39 (2006), is stated and applied, finding the trial court did not err in admitting the prior domestic violence evidence to show motive.

Prosecutor’s comments and arguments contained facts that were either placed in evidence or that were reasonably inferred from trial evidence. Although some statements were inarticulately phrased, prosecutor did not misstate the law. No burden-shifting was implied from State’s closing argument, and no merit to claim that prosecutor impermissibly accused Haygood of lying.

In light of K.S.A. 2017Supp. 21-5108(c), as amended in 2010, Haygood was entitled to an instruction on self-defense affirmative defense because his testimony was competent evidence that could allow a reasonable juror to conclude he was entitled to defend with deadly force. District court erred by denying Haygood’s request for an instruction on self-defense, but the error was harmless in this case. Likewise, even if an involuntary manslaughter lesser included offense instruction is assumed to be factually appropriate, the failure to give a lesser included offense instruction was harmless error.

CONCURRENCE (Rosen, J.)(joined by Nuss, C.J. and Stegall, J.): Concurs with the result but departs from majority’s reasoning regarding the self-defense instruction. Disagrees that a defendant’s solitary declaration that he or she committed a crime in self-defense will always satisfy the competent evidence standard described in K.S.A. 2017 Supp. 21-5108(c). Also disagrees with majority’s suggestion that the 2010 statutory provision meaningfully impacts this analysis. Under facts in this case, no rational fact-finder could reasonably conclude that Haygood acted in self-defense. Would find no error in trial court’s denial of a self-defense instruction.

STATUTES: K.S.A. 2017 Supp. 21-5108(c), -5222, -5405(a)(4); K.S.A. 21-5108

criminal procedure—jury instructions—statutes
state v. pulliam
wyandotte district court—affirmed
court of appeals—affirmed
No. 113,493—November 21, 12018

FACTS: Pulliam was convicted of voluntary manslaughter (of Eisdorfer), second-degree murder (of Burton), and criminal possession of a firearm. He appealed, claiming in part the jury should have been instructed on a theory of imperfect self-defense involuntary manslaughter as a lesser included crime for the charge of second-degree murder. Court of appeals affirmed, holding such an instruction was not factually appropriate because State v. Houston, 289 Kan. 252 (2009), required an unintentional killing for involuntary manslaughter, and there was no evidence Pulliam’s killing of Burton was unintentional. Pulliam’s petition for review granted on this one issue.

ISSUE: Jury instruction on lesser included offense of imperfect self-defense involuntary manslaughter

HELD: Court of appeals’ decision is affirmed, but on a different rationale. Pulliam’s jury instruction claim was reviewed for clear error in this case. Court of appeals’ decision relied on outdated law because Houston was based on an earlier version of the crime defining statute. The amended involuntary manslaughter statute and a new culpable mental states statute, K.S.A. 2017 Supp. 21-5202, govern this case. Conviction of involuntary manslaughter under an imperfect self-defense manslaughter theory pursuant to K.S.A. 2017 Supp. 21-5405(a)(4) does not require proof of a reckless or unintentional killing. On evidence in this case, a lesser included offense instruction on the imperfect self-defense form of involuntary manslaughter was legally and factually appropriate. District court erred in not giving it, but no clear error found. Pulliam’s second-degree murder conviction is affirmed.

STATUTES: K.S.A. 2017 Supp. 21-5109(b)(1), -5202(a)-(j), -5203(b), -5402(a)(2), -5405(a)(1)-(4), 22-3414(3); K.S.A. 21-3201, -3201(b)-(c), -3404(c), -3761(a)(2)

Tags:  administrative law  Attorney Discipline  constitutional law  Dickinson District  Douglas District  evidence  fourth amendment  jury instructions  statutes  tenure  Wyandotte District 

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February 9, 2018 Digests

Posted By Administration, Monday, February 12, 2018

Kansas Supreme Court

Criminal

constitutional law—criminal law—death penalty—judges—juries—jury instructions—statutes
state v. kahler
osage district court—affirmed
106981—february 9, 2018

FACTS: Kahler convicted in part of capital murder. No dispute that he fatally shot four victims, but defense argued severe depression rendered Kahler incapable of forming the intent and premeditation required for capital murder. On appeal Kahler claimed:

  1. prosecutor improperly objected to defense counsel's attempt during closing argument to repeat words on a Life Alert recording made during the killings;
  2. six instances of judicial misconduct during trial;
  3. district court erred in not instructing jury on expert witness testimony;
  4. adoption of mens rea approach in K.S.A. 22-3220 unconstitutionally deprived Kahler of asserting an insanity defense;
  5. district court filed to sua sponte instruct jury on felony murder as a lesser included offense;
  6. district court denied Kahler a fair trial by prohibiting defense counsel from questioning prospective jurors about their views on the death penalty;
  7. cumulative trial errors denied Kahler a fair trial;
  8. death sentence imposed upon a severely mentally ill person violates the Eighth Amendment;
  9. the two statutory aggravating factors advanced by the State to justify the death penalty were unconstitutional; and
  10. insufficient evidence supported jury's finding that the crime was committed in an especially heinous atrocious, or cruel manner.

ISSUES:

  1. Prosecutorial error;
  2. judicial misconduct;
  3. expert witness instruction;
  4. constitutionality of Kansas death penalty statute;
  5. lesser offense felony murder instruction;
  6. limitations on defense voir dire;
  7. cumulative error during guilt phase;
  8. Eighth Amendment categorical challenge to death penalty;
  9. constitutionality of aggravating circumstances;
  10. sufficiency of the evidence of an aggravating factor

HELD: Prosecutor's objection was within the permissible latitude to object to the defense summation going beyond the admitted evidence. The alleged ill will of the prosecutor in making the objection has no bearing on whether the objection itself was prosecutorial error.

Specific allegations of judicial misconduct examined, finding only one harmless error:

  1. While district court's preliminary admonition against outbursts of opinion was reasonable, better practice to also clarify that panel members would have opportunity to raise personal concerns outside the presence of other venire members.
  2. Merely requesting trial counsel to move faster if possible is not judicial misconduct, but better practice to make such administrative requests out of panel's presence.
  3. District court's editorial comment about the instruction that counsels' statements are not evidence, given right after defense opening statement, was harmless error.
  4. No misconduct in district court judge questioning a witness for clarification, but better practice to follow the procedure in State v. Boyd, 222 Kan.155 (1977).
  5. District court's premature sustaining of prosecutor's objection to defense counsel repeating words on Life Alert recording was not judicial misconduct, but it was unassigned trial error which alone did not require reversal.
  6. District court's remarks before sending jurors to deliberate did not discourage jurors from asking any questions.

District court erred in refusing to give the requested instruction on expert witness credibility, but error was harmless.

Kahler's arguments are the same as those considered and rejected in State v. Bethel, 275 Kan. 456 (2003), which held the mental disease or defect defense adopted in K.S.A. 22-3220 did not unconstitutionally abrogate Kansas's former insanity defense. Further review of Bethel is not warranted.

Felony murder is not a lesser included offense of capital murder.

Under facts in this case, district court did not prohibit defense counsel from questioning prospective jurors during voir dire about their views on the death penalty.

Cumulative effect of trial errors did not deny Kahler a fair trial, and the identified guilt-phase errors are not the type to impact the same jury's sentencing determination.

Pursuant to State v. Kleypas, 305 Kan. 224 (2016), the Kansas death penalty is not categorically disproportionate punishment for offenders who are severely mentally ill at the time they commit their crimes.

Kansas cases have rejected Kahler's challenge to the constitutionality of the two statutory aggravating factors found in his case.

State presented sufficient evidence to establish that the killings were committed in a heinous, atrocious, or cruel manner. Evidence supports the jury's weighing determination of mitigating and aggravating circumstances, and the jury's sentencing verdict.

CONCURRENCE and DISSENT (Biles, J., joined by Stegall, J.): Concurs with majority's decision to confirm Kahler's convictions and sentences, but disagrees with majority's finding of misconduct and error by the district court judge's aside that “I normally don't do this” before giving pattern jury instruction about remarks of counsel. If error, agrees it was harmless. At worst, this should be a simple “teaching moment” to caution judges about banter with juries.

DISSENT (Johnson, J): Addresses each claim individually, generally agreeing with majority's analysis and decisions on all issues but for the following:

  • Disagrees with majority's suggestion that prosecutor's bad faith or ill will can never play any role in error analysis.
  • Disagrees with majority's reliance on Bethel to reject Kahler's constitutional challenge to K.S.A. 22-3220. Death penalty was not involved in Bethel, and Kansas Supreme Court is obligated to independently analyze whether the procedure of replacing insanity defense with mens rea approach undermines the reliability of jury's determination to impose death penalty.
  • Agrees the cumulative effect of trial errors in this case do not require reversal of the guilty verdict, but strongly disagrees that guilt-phase errors can be ignored when considering the same jury's penalty-phase decision. Would hold the errors in this case undermined the reliability of jury's death sentence, which should be vacated and remanded for a new sentencing trial.
  • Expands his Kleypas dissent to now address Kahler's Eighth Amendment claim. Categorical protection of mentally retarded defendants in Atkins v. Virginia, 536 U.S. 304 (2002), is discussed and critically compared to mentally ill defendants under Kleypas.
  • As unassigned error impacting fairness and justice, reasserts his conclusion that the death penalty violates the Kansas Constitution.

STATUTES: K.S.A. 2016 Supp. 21-3439(a)(6), -5402(d), -6617, -6619, -6619(b), 22-3414(3); K.S.A. 2012 Supp. 21-5402; K.S.A. 21-3439(a), 22-3220, -3420(3)

Kansas Court of Appeals

Civil

APPELLATE PROCEDURE—JUDGMENTS
CITY OF TOPEKA V. RAMOS
SHAWNEE DISTRICT COURT—AFFIRMED
NO. 116,825 – FEBRUARY 9, 2018

FACTS: Ramos was ticketed by city police for traffic infractions. Without appearing in court, Ramos pled no contest and paid his ticket and court costs. Ramos apparently had a change of heart, and three months later he filed a motion to withdraw his plea. The motion was denied by a municipal judge, and Ramos appealed to district court. Once the case was in district court the city filed a motion to dismiss, claiming that the district court lacked jurisdiction because the appeal was filed more than 14 days after Ramos paid his fine. The district court granted the city's motion and Ramos appealed.

ISSUES: (1) Timeliness of the notice of appeal; (2) jurisdiction to consider motion to withdraw plea

HELD: Because Ramos never appeared in court, his sentence was effective on the date in September 2015 when he paid his fine online. Ramos did not file his notice of appeal to the district court until January 2016, well outside of the 14 days allowed by statute. Ramos' appeal was untimely and the district court did not err by dismissing the case on timeliness grounds. The ability to appeal the denial of a motion to withdraw plea differs depending on whether the plea was accepted by a municipal court or by a district magistrate judge or district judge. The plain language of K.S.A. 2016 Supp. 22-3609(a) does not allow for an appeal from the denial of a motion to withdraw plea that was entered in municipal court.

STATUTES: K.S.A. 2016 Supp. 22-3602, -3602(a), -3609, -3609(a), -3609(b), -3609a(a); K.S.A. 12-4102, -4103, -4305(a), -4305(c), -4508

Tags:  constitutional law  death penalty  judges  jury  Osage  Shawnee 

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December 15, 2017 Digests

Posted By Administration, Monday, December 18, 2017

Kansas Supreme Court

criminal

constitutional law—criminal procedures—statutes
state v. amos
wyandotte district court—affirmed
No. 115,925—december 15, 2017

FACTS: Amos’ 1999 convictions of first-degree murder and conspiracy to commit aggravated robbery were affirmed on direct appeal. In 2015, he filed a motion to correct an illegal sentence, seeking relief under 2014 Kansas decisions and under 2013 legislation (now codified at K.S.A. 2016 Supp. 21-6620) enacted in response to Alleyne v. United States, 570 U.S. 99 (2013), to require jury findings before an enhanced mandatory minimum sentence can be imposed for first-degree murder. District court summarily denied the motion. Amos appealed, arguing for the first time that K.S.A. 2016 Supp. 21-6620(f), which makes the 2013 amendment inapplicable to sentences that were final before June 17, 2013, violates the Equal Protection Clause.

ISSUE: Motion to correct illegal sentence

HELD: A claim that a sentence is illegal because it violates the constitution cannot be brought via K.S.A. 22-3504(1). Nor can a K.S.A. 22-3504(1) motion to correct an illegal sentence serve as the procedural vehicle for attacking the constitutionality of K.S.A. 2016 Supp. 21-6620(f). Impact of 2017 amendment of K.S.A. 22-3504 is not considered in this case.

STATUTES: K.S.A. 2016 Supp. 21-6620, -6620(f); K.S.A. 22-3504(1)

criminal

constitutional law—criminal procedure—sentencing
state v. campbell
sedgwick district court—affirmed
No. 114,814—december 15, 2017

FACTS: Campbell was convicted in 1996 of first-degree murder and multiple crimes. In calculating criminal history for application of the Kansas Sentencing Guidelines Act (KSGA), district court classified several of Campbell’s out-of-state convictions as person felonies. In 2015, Campbell filed motion to correct an illegal sentence, citing State v. Murdock, 299 Kan. 312 (2014). District court summarily denied relief, refusing to apply Murdock retroactively. Murdock was later overruled by State v. Keel, 302 Kan. 560 (2015). Campbell appealed claiming: (1) his sentence was illegal under Murdock; (2) application of Keel to Campbell’s motion violated the Ex Post Facto Clause; (3) KSGA’s person/nonperson classification of pre-KSGA offenses violates the Sixth Amendment; and (4) summary denial of his motion denied him his right under K.S.A. 22-3504(1) to a hearing. Appeal transferred to the Kansas Supreme Court.

ISSUES: (1) Classification of out-of-state convictions, (2) Ex Post Facto Clause, (3) Sixth Amendment, (4) summary denial

HELD: Campbell was not entitled to have his out-of-state convictions classified as nonperson offenses under Murdock which was overruled by Keel, and is not entitled to relief under holding in Keel. Impact of 2017 amendment of K.S.A. 22-3504 is not addressed.

Application of Keel in this case does not violate the Ex Post Facto Clause. The 1993 statutes interpreted in Keel were in effect when Campbell committed crimes in 1996. They are not laws that increased the potential punishment after Campbell’s crimes were committed.

Holding in State v. Collier, 306 Kan. 521 (2017), defeats Campbell’s Sixth Amendment claim.

Campbell mistakenly relies on 2017 amendment to K.S.A. 22-3504 which was not effective until after Campbell’s hearing. Under law that applied at the time of Campbell’s hearing, he had no right to be present for the court’s preliminary review or to demand a hearing at which he could be present.

STATUTES:  K.S.A. 2016 Supp. 21-6810(d), -6810(e), 22-3601(b)(3); K.S.A. 1993 Supp. 21-4710; K.S.A. 21-4711, 22-3504, -3504(1)

criminal

criminal procedure—juries—prosecutors—sentencing
state v. hilt
johnson district court—affirmed
No. 114,682—december 15, 2017

FACTS: Hilt was convicted of first-degree murder. Conviction affirmed, but hard-50 sentence vacated and remanded for resentencing in accord with Alleyne v. United States, 570 U.S. 99 (2013). On remand, district court replaced a juror who had consulted a high school yearbook in violation of the court’s repeated admonitions, and was not forthright when questioned. District court imposed hard-50 sentence pursuant to jury’s verdict. Hilt appealed claiming: (1) district court’s removal of the juror during deliberation was error because the juror was not doing internet research on the case, and the juror’s failure to be forthright was not a proper basis for dismissal; (2) prosector erred during closing argument by telling jury that its role was to determine whether Hilt would get hard 50 sentence or be eligible for parole in 25 years, and telling jury it did not have to determine which blows to the victim were inflicted by Hilt and which were inflicted by co-defendants; and (3) the district court’s pronouncement of sentence was illegal and violated his right to be present at sentencing

ISSUES: (1) Removal of juror, (2) prosecutorial error, (3) pronouncement of sentence

HELD: No abuse of district court’s discretion to remove and replace a juror. Under facts in case, juror who consulted the yearbook violated the judge’s admonitions to do no investigation of any matter outside the courtroom. Judge’s express skepticism of the juror’s honesty was not an independent basis for removal and replacement.

Statutory subsections governing Hilt’s crime made a hard-50 sentence mandatory once a jury found beyond a reasonable doubt that an aggravating circumstance existed that was not outweighed by any applicable mitigating circumstances. District judge had no discretion to deviate from the jury’s hard-50 verdict, and prosecutor did not misstate the law. Nor did prosecutor misstate the law by telling jurors they could vote for hard-50 sentence even if State did not prove which co-defendant inflicted specific blows or wounds.

District judge’s statements in open court, that appropriateness of imposing the hard-50 sentence was the jury’s decision which the court was going to follow and impose, did not create an illegal ambiguity in the length of Hilt’s sentence or violate his right to be present at sentencing.

STATUTES: K.S.A. 2016 Supp. 21-6620(c), -6620(d), -6620(e), -6620(e)(1), -6620(e)(5), -6623, -6624(f), -6625, -6625(a), -6625(a)(4), 22-3405, -3412(c); K.S.A. 2013 Supp. 21-6620, -6624;  K.S.A. 22-3424, -3504(3)

criminal

crimes and punishment—criminal procedure—juries—sentencing
state v. ruiz-ascencio
lyon district court—convictions affirmed—sentence vacated in part— remanded
No. 115,343—december 15, 2017

FACTS: Ruiz-Ascencio was convicted of attempted first-degree murder, first-degree murder, aggravated assault, and illegal use of a communication facility. District court imposed hard-25 sentence for first-degree murder, prison terms for the other three offenses, and lifetime post-release supervision on all four counts. Ruiz-Ascencio appealed claiming the district court: (1) erred by not instructing jury on voluntary manslaughter for the first-degree murder and attempted first-degree murder charges because both victims were shot during a sudden quarrel; and (2) imposed an illegal sentence by ordering lifetime post-release supervision on each count.

ISSUES: (1) Jury instructions, (2) sentencing

HELD: Kansas cases are reviewed. Under facts in this case, a voluntary manslaughter instruction was not factually appropriate. No facts or reasonable inferences that can be drawn therefrom to suggest a sudden quarrel, or that Ruiz-Ascencio otherwise acted in a heat of passion. One victim’s words or gestures were not enough to constitute legally sufficient provocation.

State concedes error in sentencing. Judgment imposing lifetime post-release supervision on all four counts is vacated as contrary to K.S.A. 2016 Supp. 22-3717. Remanded for resentencing.   

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

STATUTES: K.S.A. 2016 Supp. 21-5404(1), 22-3717, -3717(b)(2)(C), -3717(d)(1)(A), -3717(d)(1)(C); K.S.A. 21-5404, 22-3504

Kansas Court of Appeals

CIVIL

LIMITATION OF ACTIONS—TORTS
BONNETTE V. TRIPLE D AUTO PARTS
HAMILTON DISTRICT COURT—AFFIRMED
NO. 116,578—DECEMBER 15, 2017

FACTS: Triple D Auto Parts purchased its store in 1990. At that time, the building's exterior had not changed since its construction in 1925. One feature of the exterior was a step down from the entrance/exit door to the sidewalk. Bonnette, who was a regular customer, fell when leaving the store and badly broke her wrist. Although she had navigated the step on dozens of occasions, she alleged that she fell because she could not see the step. Bonnette filed suit against Triple D, claiming negligence. Triple D responded by claiming that it was protected by the statute of repose. The district court granted Triple D's motion for summary judgment on those grounds, and this appeal followed.

ISSUES: (1) Applicability of the statute of repose; (2) duty to warn

HELD: The facts show that Triple D failed to warn Bonnette about the dangerous step. Because the duty to warn is an ongoing duty, that duty was breached on the day Bonnette was injured. This ongoing duty prevents application of the statute of repose.  But, Bonnette had actual knowledge of the step, and the danger was open and obvious. There is no evidence that Bonnette was distracted when leaving the store. Because Triple D did not have a duty to warn it is entitled to judgment as a matter of law.

STATUTES: K.S.A. 60-513, -513(b)

Tags:  constitutional law  criminal procedure  Hamilton  juries  limitations of actions  Lyon  procedures  prosecutors  Sedgwick  sentencing  statutes  torts  Wyandotte 

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December 5, 2017 Digests

Posted By Administration, Tuesday, December 5, 2017

Kansas Supreme Court

Attorney Discipline

ORDER OF INDEFINITE SUSPENSION
IN THE MATTER OF HARRY LOUIS NAJIM
NO. 116,943 – DECEMBER 1, 2017
 

FACTS: This disciplinary matter arose after Najim was caught offering to provide legal services to an undercover agent engaged in a conspiracy to commit wire fraud and contraband cigarette trafficking. Najim's retainer was paid in cash, and Najim did not notify his law firm about the payment in excess of $10,000 cash so that it could report the payment to the Financial Crimes Enforcement Network. The failure to report is a Class D federal felony, and after a conviction a hearing panel determined that Najim violated Rule 8.4(b) (commission of a criminal act reflecting adversely on the lawyer's honesty).

HEARING PANEL: Najim pled guilty to one of the 44 counts that were filed against him in federal court. But after the disciplinary administrator filed its complaint, Najim denied that his conduct violated Rule 8.4(b). The disciplinary administrator asked that Najim's license be suspended indefinitely, retroactive to a temporary suspension that was entered after criminal charged were first filed. Najim thought that a 2-year suspension was appropriate, retroactive to May 2015. A majority of the hearing panel ultimately recommended that Najim be suspended for three years, with suspension running from the date of the Supreme Court's opinion.

HELD: Although Najim disputes the idea that he committed a crime, the record of criminal judgment was admitted into evidence during the disciplinary hearing. That judgment is conclusive evidence that a crime was committed. And the crime of which Najim was convicted was one of dishonesty. The evidence before the court warrants an indefinite suspension from the practice of law.

THREE-YEAR SUSPENSION
IN THE MATTER OF BRANDY L SUTTON
NO. 117,395 – DECEMBER 1, 2017

FACTS: A hearing panel found that Brandy L. Sutton violated KRPC 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). The complaint arose after a former employee accused Sutton of failing to make promised contributions to that employee's individual retirement account. A review by the employee revealed a shortfall of almost $9,000. Sutton disputed the amount but acknowledged there were some shortfalls which were caused by the law firm's financial distress. And, Sutton claimed, that distress was caused by the employee's negligence.

HEARING PANEL: After being notified of these issues, Sutton made whole not only the complaining employee but also other employees whose IRAs were not properly funded. The disciplinary administrator asked that Sutton be indefinitely suspended, although he acknowledged that a shorter term might be appropriate. Sutton asked that she be allowed to continue practicing law, subject to a probation plan. The hearing panel agreed with Sutton that probation was a good option for Sutton.

HELD: The hearing panel's findings were adopted. The court found that Sutton's behavior was, essentially, conversion, and that conversion historically warrants a more severe sanction than probation. Accordingly, a majority of the court elected to impose a three-year suspension, subject to lifting the suspension after six months upon application. A minority of the court would have approved the probationary plan suggested by the hearing panel.

 

Civil

NEGLIGENCE – TORTS
MCELHANEY V. THOMAS
RILEY DISTRICT COURT – 
AFFIRMED IN PART, REVERSED IN PART, REMANDED
COURT OF APPEALS – AFFIRMED IN PART, REVERSED IN PART
NO. 111,590 – DECEMBER 1, 2017

FACTS: Thomas was driving a pick-up truck when he ran over McElhaney's feet in a school parking lot. It is undisputed that Thomas was driving, but there was no agreement about his state of mind at the time. Thomas claimed it was purely an accident. McElhaney testified that Thomas told her that he just meant to "bump" her with the truck. McElhaney brought claims for both negligence and intentional tort theories. She later asked to amend her petition to include a claim for punitive damages, but that request was denied. The district court also dismissed her intentional tort claim, finding there was no evidence of an intent to injure. The Court of Appeals agreed with this assessment. And a majority of the panel upheld the district court's ruling disallowing a claim for punitive damages. This appeal followed after McElhaney's petition for review was granted.

ISSUE: Standard for proving tort of civil battery

HELD: An intent to injure is a necessary element of the tort of battery in Kansas. This includes both the intent to do actual harm and the intent to cause an offensive contact. A person may be guilty of civil battery if the defendant intends to make an offensive contact and bodily harm results. In so ruling, the court does away with the concept of "horseplay" as a legal category. And because McElhaney should have been allowed to bring her battery claim, the district court also erred by not permitting McElhaney to amend her petition and claim punitive damages.

STATUTE: K.S.A. 60-3703

criminal

constitutional law – criminal procedure – sentencing – statutes
state v. simmons
saline district court – affirmed; court of appeals – affirmed
No. 108,885 – december 1, 2017

FACTS: Simmons convicted of drug offense in 2005. Prior to her release on parole, Kansas Offender Registration Act (KORA) was amended to require registration of drug offenders. When Simmons was charged with failing to register, district court found her guilty and ordered payment of $200 DNA database fee. On appeal Simmons claimed: (1) the retroactive application of the KORA registration requirement violated the Ex Post Facto Clause; (2) it was error to impose the DNA database fee because she would have provided a DNA sample before her release on parole; and (3) even if the KORA registration was not punishment, it was part of her 2005 sentence which could not be modified by the executive branch. Court of Appeals affirmed. 50 Kan.App.2d 448 (2014). Simmons’ petition for review granted.

ISSUES: (1) Ex Post Facto Challenge, (2) Modification of Sentence, (3) DNA Database Fee

HELD: Under State v. Petersen–Beard, 304 Kan. 192 (2016), lifetime sex offender registration does not constitute “punishment” for Eighth Amendment and ex post facto challenges. Record in this appeal is insufficient to demonstrate that drug offenders as a class are distinguishable from the class of sex offenders such that KORA registration becomes punitive rather than civil when applied to drug offenders.

Challenge to authority of executive branch to order Simmons to register is issue of first impression. Simmons’ 2005 criminal sentence is not illegal, and has not been “modified” by the post–sentencing registration obligation.

District court did not err by imposing the DNA database fee required by K.S.A. 2012 Supp. 75–724. Simmons failed to show that she previously paid a DNA database fee or that she did not submit a DNA sample for the current offense.

DISSENT (Beier, J., joined by Rosen and Johnson, JJ.): Consistent with dissent in Petersen–Beard, Kansas offender registration requirement is punishment for sex or violent offender, and no less so for drug offender. Simmons met burden of showing an ex post facto violation in this case.

STATUTES: K.S.A. 2012 Supp. 75–724, –724(a)–(b); K.S.A. 22–4901 et seq.

 

appeals – criminal procedure – juries
state v. mcbride
shawnee district court – reversed
court of appeals – reversed
No. 112,277 – december 1, 2017

FACTS: McBride convicted of kidnapping. On appeal he claimed he was denied a fair trial because prosecutor asserted the alleged victim deserved consideration similar to the presumption of innocence constitutionally recognized for criminal defendants. In unpublished opinion, Court of Appeals agreed that this was prosecutorial error but found the error was harmless under State v. Tosh, 278 Kan. 83 (2004). Review granted on this issue.

ISSUE: Prosecutorial Error – Harmless Error

HELD: No cross–petition of panel’s determination that the prosecutor misstated the law, so only issue on appeal is whether this prosecutorial error was harmless. Harmless error inquiry in Tosh was abandoned in State v. Sherman, 305 Kan. 88 (2016). Applying Sherman to facts in this case, where prosecutor improperly tried to bolster victim’s credibility by claiming she deserved a credibility presumption akin to McBride’s presumption of innocence, denied McBride a fair trial. Kidnapping conviction is reversed and case is remanded to district court.

STATUTES: K.S.A. 2016 Supp. 21–5408(a)(3); K.S.A. 20–3018(b), 60–261, –2101(b)

 

criminal procedure – habeas corpus – sentencing
state v. buford
wyandotte district court – affirmed
No. 114,175 – december 1, 2017

FACTS: Buford is serving a life sentence imposed for 1990 felony murder conviction. e filed 2014 motion to correct an illegal sentence, arguing the parole board instituted a new sentence each time it denied him parole, and these “sentences” were illegal because the parole board should have classified his pre–1993 crime as a nonperson felony. District court summarily denied the motion. Buford appealed.

ISSUE: Motion to Correct Illegal Sentence

HELD: The denial of parole is not a sentence, so K.S.A. 22–3504 has no application. Claim is not construed as habeas motion because it is not clear Buford has exhausted administrative remedies.

STATUTES: K.S.A. 22–3504, 60–1501; K.S.A. 21–5401(a), 22–3717(b) (Ensley 1988)

Tags:  appeals  Attorney Discipline  constitutional law  criminal procedure  habeas corpus  juries  negligence  Saline District  sentencing  statutes  torts 

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May 5, 2017, Appellate Court Digests

Posted By Administration, Tuesday, May 9, 2017
Updated: Monday, September 10, 2018

Kansas Supreme Court

CIVIL

ADMINISTRATIVE LAW—CIVIL PROCEDURE
BOARD OF COUNTY COMM'RS V. KANSAS RACING & GAMING COMM'N
SHAWNEE DISTRICT COURT—AFFIRMED
NO. 115,978—MAY 5, 2017

FACTS: Castle Rock Casino Resort, LLC and the Board of County Commissioners of Cherokee County filed this action after the Kansas Lottery Commission selected Kansas Crossing Casino, LLC to manage a state-owned and operated casino in Southeast Kansas. The Lottery Commission rejected Castle Rock's proposal and suggested the state would be better served by a smaller casino in Crawford County, primarily because Castle Rock's proposed site was directly across the state line from a large casino in Oklahoma. After the Lottery Commission made its selection, the Kansas Racing and Gaming Commission received many public comments, many of which disagreed with the Lottery Commission's choice. After a public hearing, the KRGC voted unanimously to approve Kansas Crossing's proposed facility. Cherokee County sought review in district court, as did Castle rock. The district court denied the requests for relief, finding that the decision to select Kansas Crossing was not arbitrary, capricious, or unreasonable in light of the Southeast Kansas market. The motion to alter or amend was denied.

ISSUES: (1) Was the scope of discovery appropriate; (2) was there error when ruling on the motion to amend the petitions; (3) was there error in refusing to allow an evidentiary hearing; (4) did the KRGC misapply the lottery act by failing to make required findings; (5) was the KRGC's decision supported by sufficient evidence

HELD: The scope of discovery was within the trial court's discretion and it was unclear whether traditional discovery was available in proceedings under the KJRA. It did not matter in this case, though, since the district court disallowed discovery because the requested discovery did not relate to issues raised in the petition for judicial review. Because Appellants did not brief the issue of whether amended petitions would have prejudiced the defendants, the district court was affirmed on that issue. The request for an evidentiary hearing was a duplicative renewed motion for discovery that was properly denied. The KRGC has broad discretion to decide which gaming contract is best for the state. The statute does not specifically require findings of fact. The record as a whole shows substantial evidence to support the choice of Kansas Crossing.

STATUTES: K.S.A. 2016 Supp. 74-8702(f)(2), -8734(b), -8734(g), -8734(h) -8735, -8735(a), -8735(h), -8736(b), -8736(e), -8737, 77-603(a), -614(b), -614(c), -621(a), -621(c), -621(d); K.S.A. 2015 Supp. 74-8736(b), 77-621(c); K.S.A. 2007 Supp. 74-8702(f), -8734(a); K.S.A. 77-606, -619(a)

 CRIMINAL

criminal law—sentences
state v. reese
sedgwick district court—affirmed
court of appeals—affirmed
no. 110,021—may 5, 2017

FACTS: Reese convicted of aggravated assault with a deadly weapon. The sentencing court applied recent amendments to Kansas Offender Registration Act (KORA) making Reese’s use of deadly weapon a person felony, and lengthening the time violent offenders are required to register. Reese filed post-judgment motions to challenge the retroactivity of the KORA amendments. District court ruled that it lost subject matter jurisdiction once the sentencing order became final. Reese appealed, arguing the district court possessed jurisdiction to consider his challenge as a motion to correct an illegal sentence. In unpublished opinion, Court of Appeals cited cases that rejected a similar argument, and dismissed the appeal for lack of jurisdiction. Reese’s petition for review granted.

ISSUE: Motion to Correct Illegal Sentence - Constitutional Claim

HELD: Lower courts had jurisdiction to hear and consider Reese’s motions to correct an illegal sentence, but Reese’s claim is premised on allegations of constitutional deficiencies. As in State v. Dickey, 305 Kan. 217 (2016), Reese advanced no meritorious argument demonstrating his sentence is illegal, so his claim fails on the merits. Judgments below are affirmed as right for the wrong reason.

STATUTES: K.S.A. 2016 Supp. 22-4902(e)(2), -4906(a)(1); K.S.A. 22-3504, -3504(1), -4901 et seq.

 

criminal law—sentences
 state v. Wood
sedgwick district court—affirmed; court of appeals—affirmed
no. 111,243—may 5, 2017

FACTS: Wood was convicted in 2003 of attempted indecent liberties with a child. Sentence imposed included certification of Wood as a sex offender with duty to register. Kansas Offender Registration Act (KORA) was amended in 2011 to increase registration period from 10 to 25 years. Woods filed motion challenging the retroactive application of the 2011 amendments. District court ruled it lacked jurisdiction to consider Wood’s constitutional claims. Wood appealed, arguing the district court possessed jurisdiction to consider his challenge as a motion to correct an illegal sentence. In unpublished opinion, Court of Appeals cited cases that rejected a similar argument, and dismissed the appeal for lack of jurisdiction. Wood’s petition for review granted.

ISSUE: Motion to correct illegal sentence—Constitutional claim

HELD: Lower courts had jurisdiction to hear and consider Wood’s motions to correct an illegal sentence, but Wood’s claim was premised on allegations of constitutional deficiencies. As in State v. Dickey, 305 Kan. 217 (2016), Wood advanced no meritorious argument demonstrating his sentence was illegal, so his claim failed on the merits. Judgments below were affirmed as right for the wrong reason.

STATUTES: K.S.A. 2011 Supp. 22-4906(b)(1)(E); K.S.A. 2002 Supp. 22-4902(c)(2), -4906(b); K.S.A. 22-3504, -3504(1), -4901 et seq.

 

constitutional law—criminal law—search and seizure
state v. zwickl
reno district court—reversed and remanded
court of appeals—affirmed
no. 113,362—may 5, 2017

FACTS: Officers executed a warrant for search of Zwickl’s car and discovered pounds of marijuana. This led to issuance of a search warrant for Zickl’s residence where more drug evidence was discovered. State charged Zwickl with possession of marijuana with intent to sell and other related offenses. He filed motion to suppress, alleging the affidavit supporting the vehicle search warrant provided insufficient evidence to find probable cause for issuing the warrant. District court granted the motion, finding it entirely unreasonable for an officer to believe the vehicle search warrant was valid. State filed interlocutory appeal. In unpublished opinion, Court of Appeals reversed, finding sufficient indicia of probable cause for officers to reasonably rely in good faith on the warrant. Zwickl’s petition for review was granted.

ISSUE: Good-faith exception—probable cause determination

HELD: Applying Leon good-faith exception to exclusionary rule, adopted in State v. Hoeck, 284 Kan. 441 (2007), the details in the affidavit supporting the vehicle search warrant were examined, including the Colorado surveillance of Zwickl. That affidavit contained sufficient indicia of probable cause such that an officer’s reliance on the warrant was not entirely unreasonable. Panel’s decision was affirmed. District court’s suppression of the evidence was reversed and case was remanded.

STATUTE: K.S.A. 60-2101(b)

Tags:  administrative law  civil procedure  constitutional law  Reno District  search and seizure  Sedgwick District  Shawnee District 

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