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December 20 and December 27, 2019 Digests

Posted By Administrator, Friday, January 3, 2020

Kansas Supreme Court

criminal

constitutional law—criminal procedure—motions—search and seizure
State v. Chavez-Majors
butler district court—affirmed on issue subject to review and remanded
court of appeals—affirmed in part
No. 115,286—december 20, 2019

FACTS: Chavez-Majors convicted of aggravated battery while driving under the influence, based on motorcycle accident that caused injury to another person. Park Ranger first at scene requested EMS to draw blood from unconscious Chavez-Majors. District court denied motion to suppress the blood test results, finding the warrantless search was reasonable under probable cause plus exigent circumstances exception which satisfied the  three-prong test in Schmerber v. California, 384 U.S. 757 (1966). Court of appeals affirmed the denial of motion to suppress, but reversed the conviction because Chavez-Majors had not knowingly and voluntarily waived his right to jury trial. 54 Kan. App. 2d 543 (2017). Review granted on Chavez-Majors petition for review of panel’s decision affirming the denial of motion to suppress. State’s cross-petition for review of the jury trial issue was denied.

ISSUES: (1) Warrantless search—probable cause, (2) warrantless search—exigent circumstances

HELD: Court of Appeals decision regarding probable cause is affirmed. Probable cause determination is supported by Chavez-Majors driving at high rate of speed around curve and into parking lot he knew held parked cars and congregating people, and by strong odor of alcohol on Chavez-Majors’s breath.  

            As to whether exigent circumstances supported the warrantless blood draw, lower courts did not have benefit of Mitchell v. Wisconsin, 588 U.S. __ (2019). Because Chavez-Majors has not had a chance to fully litigate his claim under the change of law created by Mitchell, case is remanded to district court for an evidentiary hearing and district court ruling on exigency in light of Mitchell.

STATUTES: K.S.A. 2013 Supp. 8-1567; K.S.A. 22-3216

 

Kansas Court of Appeals

Civil

ATTORNEY PERFORMANCE—HABEAS CORPUS
BAKER V. STATE
LABETTE DISTRICT COURT—AFFIRMED
NO. 118,695—DECEMBER 20, 2019

FACTS: Baker pled guilty to felony murder, child abuse, possession of marijuana, and obstruction of official duty. Baker had originally been charged with aggravated criminal sodomy, a charge which could have resulted in a death penalty when combined with the murder charge, but it was dismissed under the plea agreement. At the sentencing hearing, defense counsel did not present any evidence regarding Baker's mental health. Baker received a hard 20 sentence for the felony murder, plus an additional 147 months for the other convictions. All of these sentences were presumptive for Baker's convictions, but Baker received the aggravated sentence rather than the standard sentence. Baker's convictions were affirmed on direct appeal. He timely filed a K.S.A. 60-1507 motion, plus three amended motions, in which he claimed that trial counsel was ineffective for failing to ensure that his grid sentences were ordered to run concurrently and for failing to investigate his mental health issues and present mitigating evidence. The district court denied the motion after an evidentiary hearing, and Baker appeals.

ISSUES: (1) Timeliness of the K.S.A. 60-1507 motion, (2) merits of Baker's motion

HELD: The State did not raise the timeliness issue before the district court. They waived any appellate argument by not arguing timeliness in district court. The panel assumes without deciding that trial counsel's performance was deficient under the totality of the circumstances. The only issue to decide is whether trial counsel's deficient performance was so prejudicial that Baker was harmed. The district court did not correctly apply the Strickland test and did not properly evaluate the evidence. But even when the correct test is used, the district court correctly determined that no prejudice resulted from trial counsel's deficient performance.

DISSENT: (Leben, J.) Trial counsel made no argument for anything less than the maximum possible sentence. There was a great deal of evidence regarding Baker's life experiences and mental health conditions, and that could have made a difference at sentencing. Trial counsel was prejudicially ineffective for not presenting that evidence at sentencing. He would remand this case for resentencing before a different judge.

STATUTE: K.S.A. 2018 Supp. 60-1507(f)(1); K.S.A. 60-1507

criminal 

criminal procedure—sentences—statutes
state v. gibson
geary district court—sentence vacated and case remanded
No. 120,657—december 20, 2019

FACTS: When Gibson was arrested on drug charges, he misidentified himself as his brother. The brother was then arrested for failure to show up for a hearing. Relevant to this appeal, Gibson was convicted of identity theft and perjury. Presumptive sentence was probation, but district  court granted State’s motion for a dispositional-departure sentence of prison, finding the harm from Gibson’s crimes was greater than usual. Gibson appealed.

ISSUE: (1) Dispositional departure sentence

HELD: Statutory-counterpart rule discussed. K.S.A. 2018 Supp. 21-6815 provides lists of mitigating and aggravating circumstances the sentencing court may consider in deciding whether to depart. Although each list is nonexclusive, if something is listed as a factor on one of the two lists, the absence of that factor on the counterpart list means that it may not be the basis for departure in that departure direction. Because less-than-typical harm is in list of mitigating factors but greater-than-typical harm is not included in list of aggravating factors, greater-than-typical harm may not be the basis for an upward-departure sentence. Sentence vacated and case remanded for resentencing.   

STATUTES: K.S.A. 2018 Supp. 21-6815, -6815(c)(1)(E); K.S.A. 2005 Supp. 21-4716(c)(2)(D); K.S.A. 2003 Supp. 21-4716(c)(1)(B); K.S.A. 1997 Supp. 21-4716(b)(1)(E); K.S.A. 1994 Supp. 21-4716(b)(2)(A)

constitutional law—due process—criminal procedure—probation—statutes
state v. gonzalez
sedgwick district court—remanded with directions
No. 120,179—december 27, 2019

FACTS: Following a hearing and determination of competency, Gonzalez convicted and sentenced to 52 month prison term with dispositional departure to probation for 36 months. Some seven months later he was arrested for violating probation. Noting the statutory processes for competency evaluations do not explicitly apply to probation revocation proceedings, district court revoked probation without addressing competency concerns raised by appointed counsel. Gonzalez appealed, claiming a constitutionally protected right to be mentally competent at his probation hearing.

ISSUE: (1) Probation revocation—constitutional due process

HELD: Gonzalez’ Fourteenth Amendment claim was not waived by counsel’s assertion of rights notwithstanding her failure to mention “constitution” or “due process.” Competency for due process purposes in revoking probation, an issue not yet addressed by U.S. Supreme Court or Kansas Supreme Court, is examined. The State may not revoke probation of a convicted felon who is not mentally competent at the time of the revocation hearing. In this case, district court acknowledged there were legitimate reasons to believe Gonzalez may not have been competent. The absence of a statutory procedure for competency evaluations in criminal cases after defendants have been sentenced is not a barrier to district court’s inherent authority to order a competency evaluation as a means of extending constitutional due process to a probationer facing revocation. District court erred in revoking Gonzalez’ probation without determining he was mentally competent. On remand, district court should determine if a retrospective competency evaluation can be done. If State agrees to forgo that accommodation, or district court determines such an evaluation is not feasible, then the revocation must be set aside with a new revocation proceeding and competency evaluations ordered if genuine competency issues remain. Due process requirements for statutory sanctions short of revocation are distinguished and not addressed.  

STATUTES: K.S.A. 2018 Supp. 22-3303, -3716(b)(2), -3716(c)(1)(B), - 3716(c)(11), K.S.A. 22-3202, -3301 et seq., -3302(1)

criminal procedure—probation—statutes
state v. tearney
wyandotte district court—affirmed
No. 120,340—december 20, 2019

FACTS: In 2014, district court imposed prison term but granted dispositional departure for 36 months’ probation. Probation revoked in 2016. In unpublished opinion, court of appeals reversed the revocation and remanded because district court erroneously believed Tearney had served two intermediate sanctions. While that appeal was pending, Legislature enacted the dispositional departure exception, K.S.A. 2017 Supp. 22-3716(c)(9)(B), on July 1, 2017. On remand, district court applied the new exception and again revoked probation. Tearney appealed, claiming the exception does not apply retroactively.

ISSUE: (1) Probation revocation—retroactive application of dispositional departure exception

HELD: K.S.A. 2017 Supp. 22-3716(c)(9)(B) permits a district court to revoke a defendant’s probation without having imposed a graduated sanction if probation was originally granted as the result of a dispositional departure. This exception applies to probation violations which occur after July 1, 2013, even when those violations occurred before the dispositional departure exception took effect. Retroactive application of the exception does not result in manifest injustice. Accordingly, the exception applies to Tearney’s 2016 probation violations even though her violations occurred before the exception took effect.

STATUTES: K.S.A. 2017 Supp. 22-3716(c)(9)(A), -3716(c)(9)(B), -3716(c)(12); K.S.A. 2014 Supp. 22-3716(c)

Tags:  Butler District Court  Constitutional law  criminal procedure  due process  Geary District Court  habeas corpus  Labette District Court  motions  probation  search and seizure  Sedgwick District Court  sentences  statutes 

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July 5, 2019 Digest

Posted By Administration, Monday, July 8, 2019

Kansas Court of Appeals

criminal

constitutional law—criminal law—fourth amendment—
probation—sentences—statutes
state v. hinnenkamp
sedgwick district court—affirmed
No. 119,125—july 5, 2019

FACTS: District court ordered Hinnenkamp to submit to random drug and alcohol testing as a condition of probation for her aggravated escape from custody conviction. Hinnenkamp appealed, arguing K.S.A. 2018 Supp. 21-6607(c)(6), which requires district courts to impose random drug and alcohol testing as a condition of probation, violates her federal and state constitutional right against unlawful search and seizure. State responds on merits of this argument, and also claims this issue is improperly raised for first time on appeal, jurisdiction is lacking because the issue is not ripe for consideration, and Hinnenkamp waived the issue by inadequate briefing.

ISSUES: (1) Threshold issues—preservation, ripeness, waiver; (2) constitutionality of K.S.A. 2018 Supp. 21-6607(c)(6)

HELD: Hinnenkamp is asserting her constitutional claim for first time on appeal, but her facial challenge to the constitutionality of the statute is considered. Her facial challenge to the statute is ripe for appeal, and she has not waived or abandoned her constitutional claim based on inadequate briefing.

K.S.A. 2018 Supp. 21-6607(c)(6), which subjects probationers to suspicionless drug and alcohol testing, does not, on its face, violate the Fourth Amendment of U.S. Constitution or §15 of Kansas Bill of Rights. This mandatory statutory condition of probation is exempt from Fourth Amendment’s general warrant requirement because (1) special needs of the probation system make the warrant and probable cause requirement impracticable, and (2) the primary purpose of random drug and alcohol testing for probationers is distinguishable from State’s general interest in crime control. Weighing a probationer’s diminished expectation of privacy against State’s interest in promoting rehabilitation and probation compliance, and considering the efficacy of random suspicionless drug and alcohol testing, it is reasonable to permit a court services officer or community correctional services officer to order a probationer to submit to random drug and alcohol testing, even without any suspicion of wrongdoing. Two recent unpublished Court of Appeals opinions upholding the constitutionality of K.S.A. 2018 Supp. 21-6607(c)(6) in similar cases are cited and reviewed.

STATUTES: K.S.A. 2018 Supp. 21-6607(c)(5), -6607(c)(6), 22-3717(k)(2); K.S.A. 2014 Supp. 8-1025

Tags:  8807  Constitutional Law  Fourth Amendment  Probation  Sedgwick District 

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September 5 and September 7, 2018 Digests

Posted By Administration, Monday, September 10, 2018

Kansas Supreme Court

ATTORNEY DISCIPLINE

ORDER OF REINSTATEMENT
IN THE MATTER OF LYLE LOUIS ODO
NO. 114,863 – SEPTEMBER 5, 2018

FACTS: Odo's license to practice law in Kansas was suspended for one year in July 2016. In July 2017, Odo filed a petition for reinstatement. After a hearing, the Kansas Board for Discipline of Attorneys recommended that the petition for reinstatement be granted. After careful consideration, the court accepted the panel's findings and grants the petition for reinstatement.

CIVIL

CONTRACTS—PHYSICIANS
CENTRAL KANSAS MEDICAL CENTER V. HATESOHL
BARTON DISTRICT COURT—AFFIRMED
COURT OF APPEALS—REVERSED
NO. 113,675—SEPTEMBER 7, 2018

FACTS: Central Kansas Medical Center is a nonprofit corporation which is licensed to operate an ambulatory surgical center. CKMC contracted with Dr. Hatesohl to provide family medicine services. The contract contained a postemployment clause which prevented Dr. Hatesohl from practicing medicine within a 50-mile radius of CKMC. Although he was dissatisfied with the way that the family practice merged with an urgent care facility, Dr. Hatesohl worked the full term of his contract. When he left, CKMC let him know that it would enforce all post-employment covenants. Dr. Hatesohl responded that he believed his employment contract was void because it violated the prohibition against the corporate practice of medicine doctrine. The day after his contract expired, Dr. Hatesohl entered a new contract with Great Bend Regional Hospital to practice family medicine. CKMC sought injunctive relief and damages alleging breach of contract. Dr. Hatesohl countered with a claim that CKMC's ambulatory surgical center license did not cover family medicine. The district court agreed and granted Dr. Hatesohl's motion for summary judgment, finding his employment contract was illegal.  The court of appeals reversed and the petition for review was granted.

ISSUE: (1) Validity of employment contract

HELD: The practice of medicine is limited to licensed persons, not corporations. But a corporation which is licensed by the State may employ a physician to provide medical services, with the caveat that the physician may not practice medicine that the corporation is not licensed to provide. Since CKMC only held an ambulatory surgical center license, its power to provide family medicine services through Dr. Hatesohl had to flow from that license. It did not. An ambulatory surgical center license is not broad enough to encompass a family practice. Because Dr. Hatesohl was hired to practice medicine that CKMC was not licensed to perform, his employment contract violated the corporate practice of medicine doctrine and was void.

CONCURRENCE (Stegall, J.): The corporate practice of medicine doctrine should be abandoned because it is a judicial intrusion in to the legislative arena and was created to aid special interest groups. The decision of the majority is correct because the court was not asked to overturn the doctrine and stare decisis compels this decision.

STATUTES: K.S.A. 2017 Supp. 17-2707(b)(9), 40-3401(f), 60-256(c)(2), 65-2803(a); K.S.A. 17-2709(a), 48-1603(o), -1607(a), 65-425(a), -425(b), -425(e), -425(f), -425(h), -427, -431(a), -431(c)

 

INSURANCE—STARE DECISIS
MCCULLOUGH V. WILSON
WYANDOTTE DISTRICT COURT — AFFIRMED
COURT OF APPEALS — AFFIRMED
NO. 115,067—SEPTEMBER 7, 2018

FACTS: Wilson was driving excessively fast when he collided with the back of car carrying McCullough and his passenger, Risley. McCullough and Risley filed a lawsuit against Wilson, seeking monetary damages for lost wages, pain and suffering, and medical expenses. Risley's medical expenses were paid by the PIP coverage provided by his AAA insurance. But AAA never requested reimbursement from Wilson's insurance company. After a jury decided in Risley's favor, Wilson sought to overturn part of the verdict on grounds that Risley's cause of action passed to AAA and that only AAA could recover damages for Risley's medical expenses. The district court denied the motion and the Court of Appeals affirmed. Wilson's petition for review was granted.

ISSUES: (1) Assignment of subrogation rights

HELD: The doctrine of stare decisis suggests that the district court's decision should be affirmed. Especially in cases involving contracts, reliance on prior precedent is important. Because there is no reason to depart from prior holdings, Risley is entitled to the entire verdict awarded by the jury, including the portion covering medical expenses.

STATUTE: K.S.A. 40-3103, -3113a, -3113a(c)

criminal

probation—sentences—statutes
State v. Clapp
reno district court—reversed and remanded
court of appeals—reversed
No. 112,842—September 7, 2018

FACTS: Clapp was sentenced to a 118-month prison term and granted a downward dispositional departure to 36 months probation with a 60-day jail sanction to be suspended when inpatient drug treatment had been arranged. State filed its first motion to revoke in January 2014. District court revoked probation and imposed a180-day prison sanction. State filed a second motion to revoke in August 2014. District court revoked probation and imposed the underlying sentence, specifically stating he did not feel Clapp valued Community Corrections as a way to help change how Clapp thought and lived his life. District court agreed that Clapp had not committed a new crime, had not absconded, had a job, and was still in treatment, but commented on the convictions leading to Clapp’s probation, his criminal history, and his dishonesty with his intensive supervision officer. Clapp appealed, claiming in part the district court failed to make the statutory findings required by K.S.A. 2014 Supp. 22-3716(c)(9) to bypass the statutory intermediate sanctions for parole violators. Court of appeals affirmed in an unpublished opinion, finding in part that K.S.A. 2014 Supp. 22-3716 does not require district court to make statutory findings to bypass intermediate sanctions when a violator has already served a 180-day intermediate sanction, and that, even if required in this case, the district court implicitly satisfied the particularity requirement to revoke based upon public safety. Clapp’s petition for review was granted.

ISSUE: Probation violation sanctions under 2013 and 2014 Versions of K.S.A. 22-3716

HELD: District court’s revocation of Clapp’s probation under subsection (c)(1)(E) for a second probation violation did not conform to the graduated sanctioning scheme in the 2013 and 2014 versions of K.S.A. 22-3716. For a second violation, the district court could have utilized the prison sanction of 120- or 180-days under subsections (c)(1)(C)-(D). Imposition of the underlying sentence on a probation violator was not authorized under subsection (c)(1)(E) because no previous jail sanction pursuant to K.S.A. 2014 Supp. 22-3716(b)(4)(A)-(B) or K.S.A. 2014 Supp. 22-3716(c)(1)(B) had been imposed, notwithstanding the 60-day jail term in the original sentence or the district court’s error in imposing a 180-day sanction for Clapp’s first violation. Nor did the district court set forth the particularized reasons required by K.S.A. Supp. 22-3716(c)(9) to bypass the graduated intermediate sanctions. Instead, district court’s remarks were akin to historical reasoning for revoking probation prior to the 2013 amendment to K.S.A. 22-3716. Reversed and remanded for a new dispositional hearing to comply with K.S.A. 2014 Supp. 22-3716.

STATUTES: K.S.A. 2014 Supp. 22-3716, -3716(b), -3716(b)(4)(A)-(B), -3716(c)(1)(A)-(E), -3716(c)(8), -3716(c)(9), -3716(c)(12); K.S.A. 2013 Supp. 22-3716(c)(1)(D)-(E), -3716(c)(8), -3716(c)(9); and K.S.A. 22-3504(1)

Tags:  Attorney Discipline  Barton District  probation  Reno District  sentencing  statutes  Wyandotte District 

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