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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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November 27, 2019 Digests

Posted By Administration, Monday, December 2, 2019

Kansas Supreme Court

criminaL

constitutional law—criminal procedure—motions—sentences
state v. bryant
wyandotte district court—affirmed
no. 118,848—november 27, 2019

FACTS: Bryant was convicted in 2005 of first-degree murder and aggravated robbery. Sentence imposed included criminal history calculated using three 1981 Missouri convictions for second-degree burglary as person felonies. Bryant filed 2014 motion to correct an illegal sentence, challenging the classification of his 1981 Missouri burglaries as person crimes. District court denied the motion. Bryant appealed, arguing subsequent changes in the law rendered his sentence illegal, and the district judge unconstitutionally engaged in fact-finding when he designated the 1981 Missouri convictions as person felonies.

ISSUE: (1) Motion to correct illegal sentence—out of state convictions

HELD: State v. Murdock, 309 Kan. 585 (2019)(Murdock II), forecloses Bryant’s argument that the sentence imposed is illegal due to subsequent changes in the law. Bryant failed to establish that his sentence was illegal at the time it was imposed, and he cannot use a motion to correct an illegal sentence to argue that his sentence is unconstitutional.   

STATUTES: K.S.A. 2018 Supp. 21-6801 et seq., 22-3504(1), -3504(3); K.S.A. 22-3504

constitutional law—criminal procedure—judges—trials 
state v. johnson
sedgwick district court—affirmed in part, reversed in part
court of appeals—reversed and remanded
no. 113,228—november 27, 2019

FACTS: Johnson convicted of criminal possession of a firearm, aggravated assault, and felony criminal discharge of a firearm. During afternoon recess once jury was seated, parties and the court agreed to Johnson’s evidentiary stipulation to a juvenile adjudication for an act that would constitute a felony if done by an adult. Trial began that same afternoon with the admission of exhibits and court rulings on objections. The next day, the trial judge acknowledged he had nodded off after State had begun its case-in-chief. Parties declined trial court’s invitation for motion to seek mistrial. On appeal, Johnson claimed in part the trial judge committed structural error and failed to obtain a valid jury waiver regarding Johnson’s stipulation. Court of Appeals, comparing a sleeping judge to one who was physically absent from the bench, reversed and found the trial judge committed structural error. Panel also found a jury waiver was unnecessary to Johnson’s stipulation to an element of the crimes charged. 53 Kan.App.2d 734 (2017). Review granted on these panel decisions.

ISSUES: (1) Structural error; (2) jury waiver

HELD: An isolated incident of a trial judge nodding off during a portion of testimony where no objections were made does not create structural error requiring automatic reversal. While trial judge’s inattention in this case appears significant and serious, it is not reasonable to equate the judge’s nodding off to facts in cases involving a judge who physically left the bench. U.S. Supreme Court has not included a judge nodding off (or even a physically absent judge) in identifying the limited class of structural errors. And even in circumstances of actual judicial absence, some courts have refused to apply structural error. Case remanded to Court of Appeals to examine and rule upon in the first instance whether Johnson is entitled to relief based on trial court’s judicial misconduct, and for further consideration of all issues Johnson raised on appeal in light of today’s decision.

District court erred when it accepted Johnson’s elemental stipulation without first obtaining a knowing and voluntary jury trial waiver on the record.

STATUTE: K.S.A. 2013 Supp. 22-4905(b)(2)

Kansas Court of Appeals

Civil

HABEAS CORPUS—RETALIATORY CLAIMS
GRAMMER V. KANSAS DEPARTMENT OF CORRECTIONS
ELLSWORTH DISTRICT COURT—AFFIRMED
NO. 120,909—NOVEMBER 27, 2019

FACTS: While Grammer was incarcerated, the Kansas Department of Corrections seized several personal magazines from him. Grammer filed multiple appeals of these seizures through the KDOC administrative process. Grammer was successful in several appeals, but by the time rulings were made, the magazines had been thrown away and couldn't be returned to Grammer. Frustrated, Grammer sent a letter to the ACLU explaining about KDOC's magazine-seizure policy. The ACLU responded and initiated a correspondence which lasted for a few months. During this same time period, Grammer's sister asked KDOC to transfer Grammer from Hutchinson to Lansing, so that his ill and elderly mother could visit him. That request was granted. Grammer was housed on an upper level of the facility, and he filed a grievance claiming that accessing his living space aggravated his knee injury. Shortly thereafter, Grammer was transferred again, to Ellsworth. Grammer filed another grievance in which he claimed that this transfer was in retaliation for his complaints about his living quarters and his communication with the ACLU. After his grievances were denied, Grammer filed a K.S.A. 60-1501 petition. After hearing arguments from the parties, the district court denied the petition, finding that Grammer failed to prove that his facility moves were in retaliation for his grievances. Grammer appealed.

ISSUE: (1) Whether petition showed a prima facie case of retaliation

HELD: Prison officials may not retaliate against an inmate based on an inmate's exercise of protected rights. In this case, the district court correctly found that Grammer failed to prove that his transfers were made for retaliatory reasons. Although Grammer unquestionably engaged in a protected activity, there is no evidence that any of his facility transfers made it harder for him to engage in that activity. And although it was not required to do so, KDOC provided evidence of a legitimate reason for the transfers. For those reasons, the district court correctly denied Grammer's petition.

STATUTES: 42 U.S.C. §1983; K.S.A. 2016 Supp. 75-5206; K.S.A. 60-1501

 

criminal

constitutional law—criminal procedure—evidence—fourth amendment
state v. gonzalez
coffey district court—reversed and remanded
no. 119,212—november 27, 2019

FACTS: Gonzalez stopped for speeding and given a warning. Officer then employed “Kansas two step” to continue questioning and obtain consent to search the vehicle. Gonzalez filed motions to suppress drug evidence discovered in the search, claiming the officer unlawfully extended the traffic stop and lacked reasonable cause to search. He also claimed he was stopped on the basis of his race and other bias-based policing. District court denied the motions and convicted Gonzalez of drug offenses. On appeal Gonzalez challenged the district court’s denial of motions to suppress.   

ISSUE: (1) Search and seizure—traffic stop

HELD: District court erred in finding Gonzalez’ continued detention after conclusion of the lawful traffic stop was a consensual encounter. Under totality of circumstances test stated in State v. McGinnis, 290 Kan. 547 (2010), a reasonable person would not have felt free to refuse the request for additional information or otherwise end the encounter after the officer turned around and asked Gonzalez if he would answer a few more questions. Consensual indicators set forth in State v. Thompson, 284 Kan. 763 (2007), are stated and applied. Because evidence seized as a result of the illegal detention in this case must be suppressed, no need to address alternative claim that suppression is required because officer unlawfully used national origin as a basis to justify the traffic stop.

STATUTES: None

criminal law—evidence—statutes
state v. kane
sedgwick district court—affirmed
no. 119,749—november 27, 2019

FACTS: Kane robbed a restaurant by escorting an employee at gunpoint into the restaurant, and shooting the restaurant owner while leaving. Jury convicted him of aggravated robbery, aggravated burglary, aggravated battery, attempted first-degree murder, kidnapping, and criminal possession of a weapon. Kane appealed, arguing insufficient evidence supported two of his convictions because: (1) there was no credible evidence of premeditation, an element of attempted first-degree murder; and (2) his interactions with the employee forced at gunpoint from the dumpster into restaurant’s back door did not facilitate the robbery as required by K.S.A. 2018 Supp. 21-5408(a)(2).

ISSUES: (1) Sufficiency of the evidence—premeditation; (2) sufficiency of the evidence—kidnapping

HELD: State presented both direct and circumstantial evidence of Kane’s premeditation. Viewed in the light most favorable to the State, there was sufficient evidence presented at trial to support the attempted first-degree murder conviction.

Sufficient evidence supported Kane’s kidnapping conviction. State v. Buggs, 219 Kan. 203 (1976), interpreted what it meant to “facilitate” a crime under the kidnapping statute. Factors stated in Buggs, while not specifically articulated in the kidnapping statute, are binding. A court may find a taking or confinement has independent significance from another crime for purposes of the kidnapping statute not only when an act actually makes a crime substantially easier to commit but also when the act has the potential to do so, even if the defendant never received the anticipated benefit. It is the nature of the act, not its result, that is legally important. Here, moving the employee from a public alley to inside the restaurant substantially decreased the risk of detection. That the employee escaped almost immediately upon reentering the restaurant does not impact the significance of Kane’s actions.

STATUTE: K.S.A. 2018 Supp. 21-5408(a)(2),- 5420.

Tags:  Ellsworth District  kidnapping  premediation  search and seizure  Sedgwick District  traffic stop  Weekly20191203  Wyandotte District 

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June 14, 2019 Digests

Posted By Administrator, Monday, June 17, 2019

Kansas Supreme Court

Civil

CONSTITUTIONAL ISSUES—DAMAGES
HILBURN V. ENERPIPE LTD.
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS REVERSED
DISTRICT COURT IS REVERSED, CASE REMANDED
NO. 112,765—JUNE 14, 2019

FACTS: Hilburn was injured when her car was rear-ended by a semi owned by Enerpipe Ltd. Hilburn sued, claiming that the driver's negligence caused the accident, and that Enerpipe was vicariously liable for the driver's actions. Enerpipe admitted to both of these facts, and a trial was held only on the issue of damages. A jury awarded Hilburn $335,000 which included $33,490.86 for medical expenses and $301,509.14 for noneconomic losses. Defense counsel prepared a verdict form with a total award of $283,490.86 which represented the jury's total award with the amount adjusted to reflect the $250,000 cap of K.S.A. 60-19a02(d). Hilburn objected, claiming the statutory cap was unconstitutional under sections 1, 5, and 18 of the Kansas Constitution Bill of Rights. The district court affirmed the lesser award and Hilburn appealed. The court of appeals affirmed, believed itself to be bound by prior Supreme Court decisions. Hilburn's petition for review was granted.

ISSUES: (1) Issue preservation; (2) quid pro quo test for section 5 claims; (3) facts versus policy

HELD: The version of Supreme Court rule 8.03 in effect at the time Hilburn filed her petition for review allows the court to address a plain error not presented. The issue of whether the quid pro quo test applies to Hilburn's section 5 claim was properly preserved under the old rule because Hilburn preserved it in the district court and it was addressed by the court of appeals. Section 5 of the Kansas Constitution Bill of Rights preserves the jury trial right as it historically existed at common law. This protection extends to a determination of noneconomic damages. K.S.A. 60-19a02 infringes on this constitutional right. In the past, this infringement has been excused by the two-part quid pro quo test applied through a section 18 analysis. However, continued application of the prior decision in Miller, relying on stare decisis, cannot withstand scrutiny. The section 5 right to jury trial is completely distinct from the section 18 right to remedy. A statutory cap substitutes the legislature's nonspecific judgment for a jury's specific judgment. This runs afoul of the constitution's grant of an "inviolate" right to a jury. The cap on damages imposed by K.S.A. 60-19a02 is facially unconstitutional because it violates section 5 of the Kansas Constitution Bill of Rights.

CONCURRENCE: (Stegall, J.) Justice Stegall agrees that the quid pro quo test should be reversed in favor of an application of the plain and original public meaning of section 5. He first considers whether K.S.A. 60-19a02 even implicates section 5 and concludes that it does, since K.S.A. 60-19a02 is a procedural measure affecting who decides a particular question.

DISSENT: (Luckert, J. joined by Biles, J.) She would continue to apply stare decisis and follow Miller, analyzing this issue under the quid pro quo test. She believes Hilburn did not properly preserve this issue in her petition for review. And even if the issue is analyzed on the merits, she believes that mandatory motor carrier liability insurance provides an adequate substitute remedy for litigants.

STATUTES: Kansas Constitution Bill of Rights Sections 1, 5, and 18; K.S.A. 60-19a02, -19a02(d)

DUI—FIELD SOBRIETY TESTS—SEARCH AND SEIZURE
CASPER V. KANSAS DEPARTMENT OF REVENUE
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS REVERSED
DISTRICT COURT IS AFFIRMED
NO. 115,352—JUNE 14, 2019

FACTS: Casper's driving privileges were suspended after she was arrested and refused to take a blood alcohol test. An officer saw Casper make a wide turn. He followed her and did not notice any other indicators of impairment, but he still initiated a stop. The officer testified that Casper was initially cooperative but later claimed that she failed her field sobriety tests: a horizontal gaze nystagmus test, a walk-and-turn test, and a balance-on-one-foot test. After these failures, Casper was arrested. She refused to take a breathalyzer test. Based on her refusal to take a blood test, Casper's driving privileges were suspended. She appealed, but the decision was affirmed after the hearing officer found that law enforcement had reasonable grounds to believe that Casper was under the influence. The district court disagreed, holding that Casper showed that the officer lacked reasonable grounds for believing that she was driving under the influence. The Department of Revenue appealed and the court of appeals reversed the district court, finding that there were adequate grounds for the stop and arrest. Casper's petition for review was granted.

ISSUE: (1) Factual grounds for a stop

HELD: Casper's license could only be suspended if the initial arrest was lawful. And in order to have a lawful arrest, there must have been probable cause to justify the arrest. There was no evidence that Casper's breath bore a strong odor of alcohol. The district court correctly heard all of the testimony and reviewed the recordings. The evidence before the district court was substantial and competent and the court made reasonable inferences from that evidence. The court of appeals improperly discounted those findings and should have given more deference to the district court as fact-finder. The district court's reversal of the hearing officer was supported by substantial competent evidence and should be affirmed.

STATUTE: K.S.A. 2018 Supp. 8-1002(a)(1), -1001(b)(1)(a), -1020(a), -1020(h)(1)(B)

SCHOOL FINANCE
GANNON V. STATE
SHAWNEE DISTRICT COURT—PROPOSED REMEDY
SUBSTANTIALLY COMPLIES
NO. 113,267—JUNE 14, 2019

FACTS: In June 2018, the court acknowledged that almost all issues in the long-running school finance litigation had been resolved. The court found that the equity piece was satisfied, and although the adequacy piece was not yet met, the court recognized an "intent to comply." The mandate was stayed until the end of the fiscal year in order to give the State more time to make financial adjustments and reach constitutional compliance for adequacy. The legislature's proposed remedy was through passage of 2019 House Substitute for Senate Bill 16, which was passed and signed by the governor in April 2019. The bill attempts to cover inflation with additional funding, completing the safe harbor remediation plan. Senate Bill 16 now comes to the court for review.

ISSUE: (1) Compliance with safe harbor plan and accounting for inflation

HELD: The "safe harbor" plan involves the State returning to the basic funding plan approved in 2009-10, with adjustments made for inflation. These 2009-10 calculations included adjustments for virtual state aid. S.B. 16 accounts for inflation by increasing the specific base aid figure for each of the remaining four years of the remediation plan. S.B. 16 substantially complies with prior court decisions and adequately funds education. The court retains jurisdiction to ensure continued implementation of the scheduled funding.

STATUTES: Article 6, § 6(b) of the Kansas Constitution; K.S.A. 72-5132(a) 

Criminal

CRIMINAL HISTORY—JURISDICTION—SENTENCING
STATE V. WEBER
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS AFFIRMED
DISTRICT COURT IS AFFIRMED
NO. 113,472—JUNE 14, 2019

FACTS: Weber pled guilty to attempted robbery. The plea agreement assumed that his criminal history score would be C. A presentence investigation report revealed two Michigan convictions which, if scored as person felonies, would increase his criminal history score to B. The district court imposed sentence using the B score. Weber did not directly appeal his conviction or sentence. Some years later, Weber filed a motion to correct illegal sentence based on the State v. Murdock holding; he argued that because Kansas statutes did not use the person/nonperson designations at the time of his conviction, his out-of-state convictions should be designated as nonperson felonies. The district court denied his motion and Weber appealed. The court of appeals affirmed, citing Keel and Murdock II and noting that the test was to look for comparable offenses. Weber's petition for review was granted.

ISSUES: (1) Letter of additional authority; (2) sentencing authority

HELD: The State could not use a Rule 6.09(b) letter as a substitute for a responsive brief. The statutory changes and case law updates occurred well before the State's briefing deadline would have passed. Wetrich was a change in the law. Under the law at the time of Weber's sentencing, offenses had to be comparable but not identical. Because Weber's Michigan offense was comparable to a Kansas offense, his sentence was not illegal.

STATUTES: K.S.A. 2018 Supp. 21-6811(e), -6811(e)(3); 22-3504(3); K.S.A. 21-4711(e)

Kansas Court of Appeals

Civil

PATERNITY
STATE EX REL SECRETARY OF DCF V. MANSON
SHAWNEE DISTRICT COURT—AFFIRMED
NO. 119,134—JUNE 14, 2019

FACTS: Traig Manson executed a voluntary acknowledgement of paternity (VAP) acknowledging that he was C.M.'s father. When Manson was asked to pay child support, he produced genetic testing results which allegedly showed that he was not C.M.'s biological father. He also claimed that he had no relationship with the child and that the child referred to another man as "Dad." The district court conducted a Ross hearing to determine whether official genetic testing was in two year old C.M.'s best interests. At the hearing, Manson explained that he allowed his name to go on C.M.'s birth certificate to help out the biological mother, but that he had never really had a true paternal relationship with C.M. In an effort to obtain support for C.M., DCF produced the VAP that Manson signed and noted that he did not rescind the signature within one year. The district court ruled that genetic testing was not in C.M.'s best interests and Manson appealed.

ISSUE: (1) Effect of VAP

HELD: Because Manson did not rescind his acknowledgement of paternity within one year, he remains C.M.'s father. Even if testing revealed that Manson was not C.M.'s father, he would still be required to pay child support because of the VAP. For that reason, the district court correctly refused to order genetic testing.

STATUTE: K.S.A. 2018 Supp. 23-2204, -2204(b)(1)

Tags:  8807  DUI  field sobriety tests  paternity  school finance  search and seizure  Sedgwick District  Shawnee District 

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October 12, 2018 Digests

Posted By Administration, Tuesday, October 16, 2018

Kansas Supreme Court

Attorney Discipline

ORDER OF PUBLISHED CENSURE
IN RE MICHAEL J. STUDTMANN
NO. 118,992 – OCTOBER 12, 2018

FACTS: A hearing panel determined that Studtmann violated Kansas Rules of Professional Conduct 1.2(c) (scope of representation), 1.5 (fees), 1.7(a) (conflict of interest), 1.8(f) (accepting compensation for representation of client from someone other than the client), and 1.16(d) (termination of representation). The complaint arose after Studtmann agreed to represent two individuals who were involved in a fatality automobile accident. Studtmann represented both clients without discussing with them the potential for a conflict of interest. Studtmann also spoke with his client's parents without obtaining her consent to release information to them. Both clients discharged Studtmann and obtained new counsel after a week of representation. Studtmann failed to promptly refund unearned fees to the client's parents.

HEARING PANEL: Based on the record and on stipulations made by the parties, the hearing panel determined that the fees charged by Studtmann during his time on this case were unreasonable. The panel also found numerous conflicts with Studtmann's joint representation and his dealings with his client's parents. The hearing panel believed that some of Studtmann's behavior was motivated by selfishness and it found that some of his answers at the hearing were misleading or deceptive. After noting several mitigating circumstances, the disciplinary administrator recommended discipline of a 90 day suspension. Studtmann made an initial request for probation before asking for an informal admonition. The hearing panel recommended discipline of published censure and also believed that Studtmann should be required to refund the entire retainer amount.

HELD: There were no exceptions to the hearing panel's final report. After noting that Studtmann had already refunded fees and agreed to an audit of his trust account, the disciplinary administrator recommended discipline of published censure. A majority of the court agreed. A minority of the court, troubled by the findings of Studtmann's dishonest testimony, would impose the 90-day suspension initially requested by the disciplinary administrator.

Kansas Court of Appeals

Criminal

EVIDENCE—SEARCH AND SEIZURE
STATE V. SALAZAR
MONTGOMERY DISTRICT COURT – REVERSED AND REMANDED
NO. 119,070 – OCTOBER 12, 2018 

FACTS: A motorcyclist was killed after he was hit by a van driven by Salazar. After the accident, Salazar was upset but gave law enforcement permission to get her driver's license out of her vehicle. While looking for the license, officers found Salazar's cell phone on the floor. An officer picked it up and looked at it; when asked by another officer, he said that he was just trying to determine if Salazar was texting at the time of the accident. During her later interrogation, Salazar gave officers permission to search her phone. That investigation showed that Salazar sent a text at the exact time of the accident. Officers eventually requested and received a search warrant for Salazar's phone. Salazar was charged with multiple counts, including one count of vehicular homicide. She filed a motion to suppress, claiming that the officer's initial search of her cell phone was illegal, tainting any further evidence recovered from the phone. The district court granted the motion, finding that officers conducted an invalid warrantless search of the phone. The State appealed.

ISSUES: (1) Plain view exception; (2) Attenuation doctrine; (3) Exclusionary rule

HELD: A warrant is generally required before the search of a cell phone. The officer's search of Salazar's phone was unreasonable unless an exception to the warrant requirement applies. The district court made no findings about whether the officer pressed a button on Salazar's phone in order to see the text messages, or whether they were immediately visible. But the district court's implicit finding that the officer did manipulate the phone into showing messages is supported by substantial competent evidence. Because the officer pressed a button in order to activate the phone, the plain view exception does not apply. The district court did not make the findings necessary to determine whether Salazar's consent to search her phone was voluntary and remote enough to allow for application of the attenuation doctrine. The attenuation doctrine can only apply if Salazar's consent was voluntary, and further findings of fact are required before that can be determined.

STATUTES: No statutes cited.

Tags:  Attorney Discipline  Montgomery District  search and seizure  Weekly10162018 

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May 5, 2017, Appellate Court Digests

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

Kansas Supreme Court

CIVIL

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

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

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

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

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

 CRIMINAL

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

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

ISSUE: Motion to Correct Illegal Sentence - Constitutional Claim

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

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

 

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

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

ISSUE: Motion to correct illegal sentence—Constitutional claim

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

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

 

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

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

ISSUE: Good-faith exception—probable cause determination

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

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

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

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