Kansas Supreme Court
IN THE MATTER OF LARA M. OWENS
NO. 118,693—DECEMBER 14, 2018
FACTS: A hearing panel of the Kansas Board for Discipline of Attorneys found that Owens violated KRPC 1.1 (competence), 1.3 (diligence), 1.4(a) (communication), 1.15(b) (safekeeping property), 1.16(d) (termination of representation), 8.1(b) (failure to respond to a demand from a disciplinary authority), 8.4(d) (engaging in conduct prejudicial to the administration of justice), and Rule 207(b) (failure to cooperate in a disciplinary investigation). The complaint arose after clients alleged that Owens failed to inform them of the relevant statute of limitations, failed to timely file lawsuits, and failed to communicate about case status. Owens failed to respond to an initial letter from the investigator and also ignored the follow-up email.
HEARING PANEL: Owens and the disciplinary administrator stipulated to some facts, including Owens' failure to provide her clients with timely updates on the status of their actions and her failure to cooperate in the disciplinary process. Owens was on diversion when some of the alleged misconduct occurred. She was also being treated for anxiety issues. The disciplinary administrator initially agreed to a two-year probation term with an underlying two-year suspension. But Owens failed to perform all of the required steps to put a plan in place, and both the disciplinary administrator and the hearing panel instead recommended a six-month suspension of Owens' license.
HELD: Clear and convincing evidence supports the hearing panel's findings regarding Owens' rule violations. Owens failed to comply with Rule 211(g), which establishes the tasks an attorney must undertake in order to be placed on probation. For that reason, probation is not an appropriate sanction. Based on the nature and duration of Owens' misconduct, a majority of the court imposed a six-month suspension of Owens' license. A minority of the court would have imposed a shorter suspension. Owens must undergo a Rule 219 hearing before her license can be reinstated.
state v. wilson
reno district court—reversed on issue subject to review and remanded
court of appeals—affirmed on issue subject to review
No. 114,567—december 14, 2018
FACTS: Wilson was convicted in 2007. State filed 2015 motion to correct an illegal sentence, arguing it was error not to impose lifetime post release supervision. Citing State v. Freeman 223 Kan. 362 (1978), Wilson claimed lifetime supervision was cruel and unusual punishment. District court granted the state’s motion. Wilson appealed, claiming in part he was denied a fair sentencing hearing when prosecutor misstated facts of Wilson’s case and mischaracterized facts in an unpublished opinion Wilson cited in support of his Freeman claim. A divided court of appeals panel affirmed in an unpublished opinion, finding appellate review was appropriate of claim of prosecutorial error in the context of a hearing on a motion to correct an illegal sentence, and applying test in effect prior to State v. Sherman, 305 Kan. 88 (2016). State’s petition for review was granted. State claimed the prosecutorial error challenge was not preserved for appeal because Wilson did not object to the alleged misstatements during the sentencing hearing.
ISSUES: (1) Preservation of the appeal, (2) prosecutorial error
HELD: Because the state’s petition for review advances only a merit-based challenge to the prosecutorial error question, it waived review of panel majority’s conclusion on preservation.
Prosecutorial error may occur during a sentencing proceeding before a judge. The two-step analytical framework in Sherman applies in both the guilt and penalty phases of any trial —whether before a jury or judge. Applying the Sherman test, there was reversible error at Wilson’s sentencing hearing. Prosecutor’s factual misstatements about Wilson’s underlying crime fell outside the wide latitude afforded when arguing state’s motion to correct an illegal sentence, and the state failed to show there was no reasonable possibility this prosecutorial error contributed to the district court’s decision. State concedes the prosecutor misstated facts in the unpublished case Wilson cited, but no further need in this case to explore alleged error in a prosecutor’s discussion of caselaw. The case is remanded to district court to consider again the question under Freeman—whether imposing lifetime post release supervision on Wilson would be grossly disproportionate to his offense.
STATUTE: K.S.A. 20-3018(b), 21-3501(1), 60-261, -2101(b)
Kansas Court of Appeals
appeals—constitutional law—criminal procedure—
state v. robinson
johnson district court—affirmed in part, reversed in part, and remanded
No. 117,957—december 14, 2018
FACTS: Robinson was convicted of aggravated robbery and kidnapping. His case was initially filed as a juvenile offender proceeding, and then moved to adult court where charges were amended to add kidnapping. On appeal, Robinson claimed he was denied his constitutional right to a speedy trial. He also claimed the state could not add charges once the case moved from juvenile to adult court, and claimed the state’s service of the arrest warrant was so late that the statute of limitations had expired.
ISSUES: (1) Speedy trial—juvenile proceedings, (2) amended charges, (3) statute of limitations
HELD: Speedy-trial rights apply to juvenile-offender proceedings. On facts in this case, Robinson did not lose his constitutional right to a speedy trial by his delayed filing of his motion to dismiss. Delay from the time the state brought formal charges in the juvenile court until Robinson’s trial in an adult proceeding must be analyzed under factors in Barker v. Wingo, 407 U.S. 514 (1972). Case is remanded to district court to make the required factual findings under those factors.
When a criminal charge first made in juvenile proceedings is refiled as an adult proceeding, the state is not precluded from amending the charge. No departure from rule in State v. Randolph, 19 Kan.App.2d 730 (1994). Here, Robinson made no showing that adding the kidnapping charges substantially prejudiced his ability to defend himself at trial.
Statute-of-limitation defenses are waived if not timely raised. Even assuming Robinson could have raised the statute-of-limitation defense after the case had moved to adult proceedings, his failure to do so waived the defense. On remand, the district court may consider the state’s delay in serving the warrant, its cause, and any resulting prejudice when weighing the Barker factors to decide Robinson’s speedy-trial claim.
STATUTES: K.S.A. 2017 Supp. 22-3208(4), 38-2303(d), -2303(g), -2347, -2347(b)(1), -2347(d)(1)-(3); K.S.A. 22-3201(e)