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August 7, 2020 Digests

Posted By Administration, Monday, August 10, 2020

Kansas Supreme Court

criminal

constitutional law—criminal procedure—
evidence—fourth amendment
state v. ellis
lyon district court—reversed and remanded;
court of appeals—affirmed
No. 120,046—august 7, 2020

FACTS: Police were called to check on welfare of a person (Ellis) in convenience store bathroom. Ellis stated she was okay and having stomach trouble. Police asked for identification, held Ellis’ drivers license to run warrant check, arrested her on an outstanding probation violation warrant, and found drugs and paraphernalia in subsequent search. State charged Ellis with drug offenses. She filed motion to suppress, arguing the seizure and subsequent search exceeded the scope of the encounter. State argued the attenuation doctrine set out in Utah v. Strieff, 579 U.S. __ (2016), legitimized the search. District court denied the motion and convicted Ellis in bench trial. Ellis appealed. Court of Appeals reversed, holding the investigatory detention exceeded the scope of the welfare check and the evidence obtained as a result should have been suppressed. 57 Kan.App.2d 477 (2019). State’s petition for review granted.

ISSUES: (1) Scope of welfare check; (2) attenuation doctrine

HELD: Under facts of the case, the officer lawfully engaged with Ellis and requested her identification. But police may not lawfully extend a welfare check by running a warrant check on an individual who is the subject of the check unless some other circumstances support prolonging the check and converting it into a detention. Here, the officer had no reasonable suspicion that Ellis was committing, had committed, or was about to commit a crime. Checking if Ellis “had some pick up order” exceeded the scope of the safety check. Ths constituted an unlawful seizure and consequent search.

              Application of the attenuation exception to the exclusionary rule is inappropriate on facts in this case. Factors in Strieff are applied finding all weigh against admissibility of the drug evidence under the attenuation doctrine: (1) a very short passage of time; (2) under Kansas caselaw the discovery of an outstanding warrant was not an attenuating factor in this case; and (3) the clarity of Kansas law forbidding the officer’s illegal conduct supports a finding of flagrant official misconduct. District court’s judgment is reversed and evidence seized subsequent to the initial conduct must be suppressed. Remanded for further proceedings.

CONCURRENCE (Stegall, J.)(joined by Luckert, C.J. and Wilson, J.): Concurs with the result but majority appears to back away from the more stringent requirements in Strief. Under Strief as outlined in State v. Tatro, 310 Kan. 263 (2019), when a preexisting valid warrant is discovered, the only question remaining is whether the unconstitutional conduct was purposeful or flagrant. Agrees with majority’s finding of flagrant misconduct, but would limit the analysis in these circumstances to that question only.  

STATUTES: None

constitutional law—criminal procedure—evidence—
jury instructions—prosecutors
state v. timley
shawnee district court—affirmed
No. 120,414—august 7, 2020

FACTS: Timley convicted of first-degree premeditated murder. During trial, Timley’s cellphone records including the cell towers accessed were admitted into evidence without objection, and a detective using Per Call Measurement Data (PCMD) from Sprint testified about the relative position of Timley’s phone throughout the day of the shooting. On appeal Timley claimed: (1) prosecutor erred during opening and closing arguments by making statements concerning the location of Timley’s phone at the time of the shooting; (2) district court erred in admitting the detective’s cell tower maps and accompanying testimony because detective lacked necessary expertise; (3) district court committed clear error by failing to instruct jury on intentional second-degree murder as a lesser included offense; (4) district court’s failure to instruct jury on lesser included offenses violated Timley’s right to due process; and (5) cumulative error denied him a fair trial.

ISSUES: (1) Prosecutorial error; (2) admission of evidence; (3)jury instruction on lesser included offense; (4) due process; (5) cumulative error

HELD: Prosecutor’s remarks during closing argument did not stretch the PCMD distance from a cell tower to Timley’s phone into a certitude, and thereby did not exceed the wide latitude extended to prosecutors. Prosecutor’s opening statement, by postulating that Timley’s phone was “exactly” at the site of the shooting, barely avoided error, but even if error, no possibility the prosecutor’s remark contributed to the verdict.

            Under facts of the case, no expert witness was needed. The detective’s exhibits and accompanying testimony did not require any specialized knowledge or expertise beyond that which he was demonstrated to possess.

            District court erred in failing to sua sponte instruct jury on lesser included offense of intentional second-degree murder, but under facts of the case, no clear error is found.

              In noncapital case, a district court’s failure to sua sponte instruct on lesser included offense does not violate a defendant’s constitutional right to due process. Based on State v. Becker, 311 Kan. 176 (2020), and State v. Love, 305 Kan. 716 (2017), no due process violation found in district court’s failure to issue a lesser included offense instruction sua sponte.

            Cumulative error claim is rejected. Only one harmless error found in district court’s failure to sua sponte instruct jury on a lesser included offense. Even if prosecutor’s opening statement was harmless error, it bore no relation to the instructional error.

CONCURRENCE (Biles, J.)(joined by Rosen, J. and Ward, S.J.): Disagrees that prosecutor’s opening statement was fair comment. Would hold it was error for prosecutor in opening statement to tell jury the cell tower data would reflect Timley’s exact location, but agrees the error is harmless for reasons stated by majority.

STATUTES: None

 

Kansas Court of Appeals

criminal

criminal law—insurance—jurisdiction—statutes
state v. rozell
wyandotte district court—affirmed
No. 121,094—August 7, 2020

FACTS: Rozell (Missouri resident) and Lopez (Wyandotte County, Kansas, resident) were in a car accident in Missouri. Rozell submitted bodily injury claim on Lopez’ State Farm insurance to a claims representative in Tennessee who discovered the Missouri hospital bill Lopez submitted had been altered to show a post-accident date. State charged Rozell in Wyandotte County with one count of making false information and one count of fraudulent insurance act, listing State Farm as the victim of Rozell’s crimes. District court granted Rozell’s motion to dismiss the charges for lack of jurisdiction. State appealed, arguing proximate result jurisdiction existed under K.S.A. 2017 Supp. 21-5106(b)(3) for a person who attempts to defraud a Kansas insurance policy issued to a Kansas resident, and Wyandotte County was the proper venue.

ISSUE: Proximate result jurisdiction

HELD: District court’s dismissal of the charges for lack of jurisdiction is affirmed. Kansas does not have proximate result jurisdiction to prosecute Rozell for making false information, K.S.A. 2019 Supp. 21-5824(a), or committing a fraudulent insurance act, K.S.A. 2019 Supp. 40-2,118(a), just because he allegedly intended to defraud a Kansas insurance policy. The law related to proximate result jurisdiction is reviewed. When determining proximate result jurisdiction, Kansas courts may consider the negative consequences of a person’s out-of-state criminal acts within Kansas only if the statutory language of that person’s charged crime considered such negative consequences. Here, the State failed to analyze the elements of the charged crimes. Neither the making false information statute, nor the fraudulent insurance act statute consider the negative consequences of a person’s out-of-state criminal acts in the language of the statute.

STATUTES: K.S.A. 2019 Supp. 21-40-2,118(a), -5106, -5106(b), -5106(b)(3), -5824(a), -5830(a)(2); K.S.A. 2017 Supp. 40-2,118(a), -2,118(e), -5106(b),-5106(b)(3), -5824(a) ; K.S.A. 1994 Supp. 21-3734(a)(2)

Tags:  Constitutional Law  criminal procedure  evidence  Fourth Amendment  insurance  jurisdiction  jury instructions  Lyon District Court  prosecutors  Shawnee District Court  statutes  Wyandotte District Court 

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July 31, 2020

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

Kansas Court of Appeals

Civil

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

criminal

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

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

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

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

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

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

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

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July 17, 2020 Digests

Posted By Administration, Monday, July 20, 2020

 

Kansas Supreme Court

 

CRIMINAL

 

ATTORNEYS—CONSTITUTIONAL LAW—CRIMINAL PROCEDURE—MENTAL COMPETENCY

STATE V. BURDEN

SUMNER DISTRICT COURT—AFFIRMED; COURT OF APPEALS—AFFIRMED

NO. 116,819 - JULY 17, 2020

 

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

 

ISSUE: (1) Standard for determining mental competency

 

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

 

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

 

CRIMINAL PROCEDURE—MOTIONS—STATUTES

STATE V. EDWARDS

SHAWNEE DISTRICT COURT—AFFIRMED

NO. 120,600—JULY 17, 2020

 

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

 

ISSUE: (1) DNA testing statute

 

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

 

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

 

CONSTITUTIONAL LAW—CRIMINAL LAW—EVIDENCE—STATUTES

STATE V. HARRIS

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

NO. 116,515—JULY 17, 2020

 

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

 

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

 

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

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

 

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

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

 

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

 

CONSTITUTIONAL LAW—CRIMINAL PROCEDURE—JURIES—STATUTES

STATE V. HARRISON

JOHNSON DISTRICT COURT—AFFIRMED; COURT OF APPEALS—AFFIRMED

NO. 116,670—JULY 17, 2020

 

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

 

ISSUE: (1) Response to jury’s question

 

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

 

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

 

 CRIMINAL PROCEDURE—MOTIONS—POSTCONVICTION RELIEF—STATUTES

STATE V. HILL

OSAGE DISTRICT COURT—AFFIRMED

NO. 119,359—JULY 17, 2020

 

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

 

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

 

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

 

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

 

 

Kansas Court of Appeals

 

CIVIL

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

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July 10, 2020 Digests

Posted By Administration, Monday, July 13, 2020

Kansas Supreme Court

Civil

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

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

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

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

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

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

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

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

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

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

criminal

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Kansas Court of Appeals

  CRIMINAL

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

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

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

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

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

            No errors shown for application of cumulative error doctrine.

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

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

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

 

 

 

 

 

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

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June 19, 2020 Digests

Posted By Administration, Monday, June 22, 2020

Kansas Supreme Court

criminal

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

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

ISSUE: (1) Mootness Doctrineexpiration of sentence

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

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

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

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

ISSUE: (1) Mootness Doctrineexpiration of sentence

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

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

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

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

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

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

ISSUE: Mootness doctrineexpiration of sentence

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

STATUTES: None

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

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

ISSUE: Mootness doctrineexpiration of sentence

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

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

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

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

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

ISSUE: (1) Mootness Doctrine—expiration of sentence

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

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

STATUTE: K.S.A. 60-1507

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

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

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

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

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

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

 

Kansas Court of Appeals

Civil

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

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

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

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

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

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

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June 12, 2020 Digests

Posted By Administration, Monday, June 15, 2020

Kansas Supreme Court

 

criminal 

attorneys and clients—criminal procedure—motions—sentencing
state v. adams
sedgwick district court—affirmed
no. 120,475—june 12, 2020

FACTS: District court allowed Adams to dismiss his appointed attorney and to proceed pro se at trial, resulting in plea agreement for guilty plea to criminal charges including premeditated first-degree murder. His request for reappointment of attorney for sentencing was granted. Sentence was imposed, which included a hard 50 sentence, following the plea agreement. Adams later filed motion to withdraw plea stating he was prepared to offer evidence from Iowa and Kansas departments of corrections of his unmedicated schizophrenia to show his plea was involuntary. He also filed K.S.A. 60-1507 motion alleging appointed counsel was ineffective because he did not address at sentencing whether Adams had an unmedicated mental health diagnosis, or have Adams undergo a mental health evaluation. District court held preliminary hearing with new appointed counsel and denied both motions. Adams appealed.

ISSUES: (1) Post-sentence motion to withdraw plea; (2) ineffective assistance of counsel at sentencing

HELD: District court properly concluded there was no manifest injustice because even if Adams had been allowed to present evidence regarding his previous mental health status, that diagnosis was not dispositive and the overall record would still conclusively show he was entitled to no relief.

            Under totality of circumstances, appointed counsel’s decision to forego a mental health evaluation of Adams does not constitute deficient representation when record shows Adams was sufficiently engaged in a rational, thoughtful, knowing way throughout the proceeding. There were no red flags in the record to suggest appointed counsel should have investigated Adams’s mental health. Adams’s reliance on “duty to investigate” in State v. Orr, 262 Kan. 312 (1997), is misplaced.

STATUTES: K.S.A. 2019 Supp. 22-3210(d)(2); K.S.A. 22-3301(1), 60-1507

criminal law—criminal procedure—evidence—statutes
state v. dinkel
saline district court—remanded with directions; court of appeals—reversed
no. 113,705—june 12, 2020

FACTS: Jury convicted a school counselor of two counts of rape of 13-yr-old boy (K.H.). Dinkel appealed on claims related to her defense that the K.H. had raped and then blackmailed her into continuing sexual encounters. Dinkel argued the district court’s exclusion of this evidence violated evidentiary rules and her constitutional right to present a defense. Court of appeals affirmed in unpublished opinion, concluding the rape of a child has no mental culpability requirement thus Dinkel’s intent was irrelevant. Review granted.

ISSUE: K.S.A. 2012 Supp. 21-5503(a)(3) - Evidence relevant to voluntary act requirement

HELD: Court of Appeals erred in concluding that whether K.H. forced the sexual encounter was irrelevant. As defined in K.S.A. 2012 Supp. 21-5503(a)(3), rape of a child under age 14 requires a voluntary act on the part of the defendant. Dinkel’s claim that she was forcibly raped is relevant since the rape of Dinkel negates the voluntary act requirement of rape of a child under 14. Jurisdiction retained while case is remanded to district court for Van Cleave hearing to determine whether defense trial counsel was ineffective for failing to argue the State never established the voluntary act requirement.  

STATUTE: K.S.A. 2012 Supp. 21-5201, -5202, -5202(a), -5202(b), -5202(h), -5202(d), -5203(b), -5501(a), -5503(a)(3)

constitutional law—criminal procedure—preemption—statutes
state v. Garcia
johnson district court—affirmed; court of appeals—affirmed
no. 112,502—june 12, 2020

FACTS: Kansas Supreme Court reversed Garcia’s jury conviction for identity theft, holding prosecution based on the use of his W-4 form was preempted by the Immigration and Reform and Control Act (IRCA). State v. Garcia, 306 Kan. 1113 (2017). State filed writ of certiorari in this and companion cases. United States Supreme Court reversed and remanded the state supreme court’s judgment, holding state law prosecutions were not preempted by the IRCA.

ISSUE: PreemptionImmigration Reform and Control Act of 1986

HELD: Consistent with Kansas v. Garcia, 589 U.S. __ (2020), a Kansas prosecution for identity theft or making false information based on information a defendant provides on employment forms, with the exception of the I-9 form, is not preempted by the IRCA. Review of whether there was sufficient evidence of intent to defraud, and whether district court’s failure to give unanimity instruction was clearly erroneous, was improvidently granted. These issues are not addressed on the merits.

STATUTES: 8 U.S.C. § 1324a(b)(5); K.S.A. 2012 Supp. 21-6107

constitutional law—evidence—motions
state v. Glover
douglas district court—reversed; court of appeals—affirmed
no. 116,446—june 12, 2020

FACTS: District court granted Glover’s motion to suppress evidence obtained during a traffic stop, finding the officer lacked reasonable suspicion of illegal activity when he stopped the truck in violation of Fourth Amendment. Court of Appeals reversed. State v. Glover,  54 Kan. App. 2d 377 (2017). Kansas Supreme Court reversed and affirmed the district court’s suppression ruling. 308 Kan. 590 (2018). State’s writ of certiorari granted.

ISSUE: Fourth Amendmenttraffic stop

HELD: Consistent with Kansas v. Glover, 589 U.S. __ (2020), an investigative traffic stop made after running a vehicle’s license plate and learning the registered owner’s driver’s license has been revoked is reasonable under the Fourth Amendment if the officer lacks information negating an inference that the owner is driving the vehicle. Here, the stipulated facts reveal no information known by the deputy sufficient to rebut that reasonable inference. Kansas Supreme Court’s judgment is vacated and case is remanded to district court for further proceedings.

STATUTES: None

constitutional law—criminal procedure—preemption—statutes
state v. morales
johnson district court—affirmed; court of appeals—affirmed
no. 111,904—june 12 2020

FACTS: Kansas Supreme Court reversed Morales’ convictions for identity theft and making a false information, holding prosecution based on use of a Social Security number belonging to another person for employment was preempted by the Immigration and Reform and Control Act (IRCA). State v. Morales, 306 Kan. 1100 (2017). State filed writ of certiorari in this and companion cases. United States Supreme Court reversed and remanded the state supreme court’s judgment, holding state law prosecutions were not preempted by the IRCA.

ISSUE: PreemptionImmigration Reform and Control Act of 1986

HELD: Consistent with Kansas v. Garcia, 589 U.S. __ (2020), a Kansas prosecution for identity theft or making false information based on information a defendant provides on employment forms, with the exception of the I-9 form, is not preempted by the IRCA. Review of whether there was sufficient evidence of intent to defraud was improvidently granted. This issue is not addressed on the merits.

STATUTE: 8 U.S.C. § 1324a(b)(5)

criminal procedure—restitution—sentencing
state v. tucker
wyandotte district court—reversed
no. 119,242—june 12, 2020

FACTS: Tucker pled guilty to one count of capital murder and was sentenced to prison for life without parole. District court ordered payment of $5,000 in restitution without an explicit order for payment during Tucker’s incarceration, and acknowledged that restitution will never be paid. Tucker appealed.

ISSUE: Restitutionunworkable plan

HELD: Under circumstances in this case, district court abused its discretion by ordering an indigent criminal defendant sentenced to life in prison without possibility of parole to pay restitution even while recognizing the restitution would not be paid. State v. Holt, 305 Kan. 839 (2017), State v. Shank, 304 Kan. 89 (2016), and State v. Alcala,  301 Kan. 832 (2015), are distinguished. Restitution is the rule, and unworkability is the exception. Here, Tucker met the burden of establishing that the restitution plan was unworkable. Restitution order is reversed.

STATUTE: K.S.A. 2015 Supp. 21-6604(b)(1)

 

Kansas Court of Appeals

Civil

ADMINISTRATIVE LAW—JURISDICTION
BRUNGARDT V. KANSAS DEPARTMENT OF REVENUE
FINNEY DISTRICT COURT—REVERSED AND REMANDED
NO. 120,409—JUNE 12, 2020

FACTS: Corporal Kerley arrested Brungardt for driving under the influence. Corporal Kerley administered a breath test, following the mandatory procedures for the Intoxilyzer 9000 machine. The machine allows officers to fill out the required forms—including the DC-27 certification form—electronically. Because his blood-alcohol level exceeded legal limits, Brungardt's driver's license was administratively suspended by the Kansas Department of Revenue. In requesting an administrative hearing, Brungardt claimed, among other things, that the DC-27 form was invalid because it lacked an original, non-electronic signature. Although the hearing officer affirmed his suspension, the district court reversed during judicial review. The court found no flaws in Corporal Kerley's performance but ruled that Corporal Kerley had physically signed the machine when he created his electronic signature profile, before Brungardt's test was performed. K.S.A. 8-1002(b) establishes that certification of the DC-27 form occurs upon signing, and the district court reasoned that Corporal Kerley signed a blank page when he established his signature profile. The department appealed.

ISSUES: (1) Jurisdiction; (2) validity of electronic signature

HELD: Brungardt's petition for judicial review included his claim that the DC-27 form was invalid. Even though he didn't argue the exact grounds relied on by the district court when overturning the suspension, Brungardt gave adequate notice that the validity of the DC-27 was in question. This gave the district court jurisdiction to rule. "Signing" encompasses more activity than merely writing a name, and Kansas law recognizes electronic signatures. It is the intent of signing, not the physical form, which controls the effectiveness of the signature. Corporal Kerley followed the procedures of K.S.A. 8-1002(b) and affixed his signature when done. The district court improperly interpreted the statute and erred by reversing the suspension of Brungardt's driver's license.

STATUTES: K.S.A. 2019 Supp. 8-1001, -1002(a), -1002(b), -1002(f); K.S.A. 77-614(b)(6)

Criminal

EQUAL PROTECTION—SEX CRIMES
STATE V. LITTLE
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 120,214—JUNE 12, 2020

FACTS: Little was convicted of multiple, high-level felonies, including rape and aggravated criminal sodomy. These convictions meant that on top of his prison sentence, Little was given a lifetime term of postrelease supervision. Little appealed, arguing that this lifetime term of postrelease violated his right to equal protection.

ISSUE: (1) Equal protection

HELD: Equal protection requires that similarly situated people be treated alike. Little compares his postrelease term to the shorter terms given to people who are convicted of other serious felonies, like murder. But sex offenders are not similarly situated to people convicted of murder. Individuals convicted of certain sex offenses have much higher rates of recidivism, and the lifetime term of postrelease supervision serves the dual purpose of allowing rehabilitation while also protecting the public from future offenses.

STATUTE: K.S.A. 2008 Supp. 22-3717(d)(1)(G)

Tags:  administrative law  Attorneys and Clients  Constitutional Law  criminal law  criminal procedure  equal protection  evidence  jurisdiction  motions  preemption  restitution  sentencing  sex crimes  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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March 27, 2020 Digests

Posted By Administration, Tuesday, March 31, 2020

Kansas Supreme Court

criminal

appeals—constitutional law—criminal law—criminal procedure—
evidence—juries—jury instruction—statutes
state v. Gonzalez
wyandotte district court—affirmed
no. 119,492—march 27, 2020

FACTS: Passenger (Espinoza) in car driven by Gonzalez shot and killed a man outside a bar. Gonzalez convicted of felony murder, attempted aggravated robbery, and conspiracy to commit aggravated robbery. During trial, district court refused to compel testimony of Espinoza who had already pleaded guilty and been sentenced for his participation. On appeal Gonzalez argued: (1) insufficient evidence supported the convictions; (2) the attempt and conspiracy convictions were multiplicitous; (3) district court’s aiding and abetting jury instruction erroneously lowered the State’s burden of proof on specific intent crimes; (4) district court erroneously permitted Espinoza to invoke Fifth Amendment privilege; (5) State’s peremptory strikes during jury selection constituted purposeful racial discrimination to exclude prospective Hispanic jurors; and (6) cumulative error denied him a fair trial.

ISSUES: (1) Sufficiency of the evidence; (2) multiplicitous offenses; (3) jury instruction—aiding and abetting; (4) Fifth Amendment—failure to compel testimony, (5) Batson challenge, (6) cumulative error 

HELD: Evidence in this case established the pair’s intent to rob the victim and an agreement to commit aggravated robbery. Evidence included detective’s testimony, without objection, that provided a concrete context to ambiguous text messages.

            District court’s instruction accurately reflected Kansas’ aiding and abetting statute, but did not accurately state applicable caselaw limiting the statute’s use when defendants are charged with aiding and abetting specific intent crimes. In this case the legal error was harmless under the clear error standard.

             Multiplicity claim, raised for first time on appeal, is considered. Gonzalez’ conspiracy and the aiding and abetting attempted aggravated robbery convictions are not multiplicitous - each requires proof of an element not required by the other.

            Gonzalez’ failure to make an adequate proffer of what Espinoza would have testified about provides no basis for appellate review of whether trial court abused its discretion in not compelling the testimony.

            Jury selection in this case is examined. No abuse of district court’s discretion in finding Gonzalez failed to show purposeful discrimination given the State’s race-neutral reasons for its peremptory strikes.

            The single error found in this case does not support application of the cumulative error doctrine.

STATUTES: K.S.A. 2018 Supp. 21-5210, -5210(a), -5301, -5301(a), -5302(a), -5402(a)(2), -5402(c)(1)(D), -5420, 22-3414(3), -3601(b)(3), -3601(b)(4); K.S.A. 60-405

 

Kansas Court of Appeals

Civil

DIVORCE—PROPERTY DIVISION
IN RE MARRIAGE OF PERALES
SALINE DISTRICT COURT—AFFIRMED
NO. 120,306—MARCH 27, 2020

FACTS: Gary Perales is serving a life sentence in prison. At the time of his divorce from Cynthia Perales, Cynthia was supporting herself and the couple's four children. Gary did not complete a property affidavit, but he has been imprisoned since 2012. The district court held a hearing to consider separation of the couple's property. At the hearing, Cynthia provided a quitclaim deed showing that Gary had deeded the house to her and testified that she needed Gary's truck to transport herself and their children. Cynthia also testified that she made payments on both the house and truck after Gary's imprisonment. Gary disputed Cynthia's testimony about the quitclaim deed and claimed that he sold both the house and his truck to his sister. After weighing the evidence, the district court ruled that it would be most equitable to award Cynthia both the house and the truck. Gary appealed.

ISSUES: (1) Award of the house; (2) requirement that Cynthia compensate Gary

HELD: There is no evidence that the district court failed to consider the home as marital property subject to division. To the contrary, the district court appropriately considered the factors established by K.S.A. 2019 Supp. 23-2802(c). A division of marital property need only be equitable, not equal. There is a statutory requirement that property division may be accomplished by the payment of a "just and proper sum" to one party. In some cases, equity may allow that sum to be zero. The extraordinary facts of this case mean the district court's award of assets to Cynthia was equitable.

STATUTE: K.S.A. 2019 Supp. 23-2801, -2802(a)(1), -2802(a)(2), -2802(c)

criminal

criminal law—statutes
state v. lucas
sedgwick district court—affirmed
no. 120,510—March 27, 2020

FACTS: Lucas convicted of being a felon in criminal possession of a “firearm or knife,” K.S.A. 2017 Supp. 216304(c)(2). The weapon in this case was a folding knife 9 inches long when unfolded, 5.5. inches long when closed, with a 4.5 in. blade. Lucas argued the folding knife was not a “knife” as defined by K.S.A. 2017 Supp. 21-6304(c)(1).

ISSUE: Statutory definition of “knife”

HELD: District court did not err in concluding the folding knife in this case is a dangerous or deadly cutting instrument of like character to those listed in K.S.A. 2017 Supp. 21-6304(c)(1).

STATUTE: K.S.A. 2017 Supp. 21-6304, -6304(a)(2), -6304(c)(1), -6304(c)(2)

appeals—criminal procedure—discovery—evidence—jurisdiction
state v. mundo-parra
sedgwick district court—affirmed
no. 118,875—march 27, 2020

FACTS: Mundo-Parra convicted in 2005 on no contest pleas to kidnapping and rape. In 2017 while still serving his sentence, he asked prosecutors to provide State’s investigatory files in the case, including anything that might show his innocence. District court denied the request. Mundo-Parra appealed. State argued the appeal was not timely filed within 30 days of district court’s ruling.

ISSUES: (1) Appellate jurisdiction; (2) district court’s jurisdiction; (3) postconviction discovery

HELD: State’s jurisdictional hurdle is rejected. District court entered its order electronically, with no record in district court’s file that court clerk mailed a copy of the order to Mundo-Parra. After that order had been entered Mundo-Parra made several requests for a court ruling on his discovery request, and filed his notice of appeal well within 30 days of district court’s denial of Mondo-Parra’s last request for a ruling.

            District court had jurisdiction to consider Mundo-Parra’s request for postconviction discovery, even though there was no pending motion in the criminal case and no pending civil action challenging his confinement. There is no Kansas statute governing postconviction discovery, and no statutory limit on district court’s general jurisdiction over it.

            No provision in Kansas Code of Criminal Procedure covers postconviction discovery. Kansas cases are reviewed and guidance sought from rules and statutes in federal and state jurisdictions. Panel concludes postconviction discovery sought by the defendant should be allowed when the defendant shows it is necessary to protect substantial rights. To get discovery, the defendant must make a good-cause showing by identifying the specific subject matter for discovery and explaining why discovery about those matters is necessary to protect substantial rights. Mundo-Parra made no such showing in this case. Instead, his request is a classic fishing expedition with no stated connection to any claim that could lead to setting aside either his no-contest pleas or his convictions.

STATUTES: K.S.A. 2019 Supp. 21-2512, 22-3210(d)(2), -3212, -3213, 60-1507, -2103(a); K.S.A. 20-301

 

Tags:  appeals  constitutional law  criminal law  criminal procedure  discovery  divorce  evidence  juries  jurisdiction  jury instructions  property division  Saline District Court  Sedgwick District Court  statutes  Wyandotte District Court 

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January 31, 2020 Digests

Posted By Administration, Tuesday, February 4, 2020

Kansas Supreme Court

criminal

constitutional law—appeals—appellate procedure—
criminal procedure—jurisdiction—statutes
state v. smith
sedgwick district court—court of appeals dismissal of the appeal is affirmed
no. 115,321—january 31, 2020

FACTS: In two separate cases, Smith pleaded guilty to refusing to submit to a test to determine presence of alcohol or drugs. Court of appeals consolidated Smith’s direct appeals. Relying on State v. Ryce, 303 Kan 899 (2016), decided while the consolidated appeal was pending, Smith argued the district court lacked jurisdiction to render the criminal judgments. In response, State argued the court of appeals lacked jurisdiction to consider a direct appeal from a guilty plea. Court of appeals dismissed Smith’s appeal for lack of subject matter jurisdiction without considering the merits of his Ryce claim.

ISSUE: (1) Appellate jurisdiction

HELD: Court of appeals did not err when it dismissed Smith’s appeal for lack of jurisdiction. K.S.A. 22-3602 is interpreted to resolve ambiguity, finding K.S.A. 22-3602(a) explicitly provides that a defendant cannot appeal a conviction after pleading guilty. K.S.A. 22-3504 allows appeals of sentences, not convictions, and federal caselaw allowing for direct appeals after guilty pleas in certain situations is inapplicable here. Smith’s convictions may be challenged in other ways, so notions of justice do not demand appellate jurisdiction. If he had still been serving his sentence, Smith could have filed a motion under K.S.A. 60-1507 to seek relief. He can also file a motion to withdraw his plea, and if denied, court of appeals has jurisdiction to consider an appeal from that denial.

STATUTES: K.S.A. 2018 Supp. 22-3601(a), -3602(a), 60-1507(a); K.S.A. 2014 Supp. 8-1025; K.S.A. 2013 Supp. 8-1025; K.S.A. 20-3001, 22-3210(d)(2), -3504, -3601, -3602, -3602(a), 60-1507, -1507; K.S.A. 62-1701 (Corrick)

 

Kansas Court of Appeals

criminal

appellate procedure—constitutional law—evidence—fourth amendment
state v. mckenna 
reno district court—affirmed
no. 119,431—january 31, 2020

FACTS: Officer checked on a sleeping or unconscious woman (McKenna) in driver’s seat in a parked car, and then arrested her on an outstanding warrant which was discovered once officer obtained McKenna’s name and ran a warrants check. McKenna was charged with possession of methamphetamine and possession of a stimulant, based on evidence found in her clothing during booking. McKenna filed motion to suppress, arguing the officer unconstitutionally detained her without reasonable suspicion she was committing a crime. District court denied the motion, finding officer’s actions were justified as a welfare check. McKenna appealed the denial of her motion to suppress. Parties submitted supplemental briefing on issue of whether the public safety stop exceeded its lawful scope when officer asked for McKenna’s name and ran a warrants check.

ISSUE: (1) Public safety stop

HELD: Under circumstances of this case, officer did not exceed scope of a public safety stop by asking for McKenna’s name, getting a verbal response, and checking that name locally for warrants. Three-part test in State v. Gonzales, 36 Kan.App.2d 446 (2006), is satisfied in this case. Record shows officer’s actions were motivated by a desire to render aid or assistance rather than to investigate criminal activity.  

STATUTE: K.S.A. 22-2402(1)

Tags:  appeals  appellate procedure  constitutional law  criminal procedure  evidence  Fourth Amendment  jurisdiction  Reno District Court  Sedgwick District Court  statutes 

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December 6, 2019 Digests

Posted By Administration, Monday, December 9, 2019

Kansas Supreme Court

 

Attorney Discipline

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

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

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

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

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

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

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

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

Court Reporter Discipline

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

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

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

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

Civil

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

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

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

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

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

criminal 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ISSUE: (1) Statue of limitations—excusable neglect

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

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

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

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

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

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

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

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

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

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

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

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

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