Print Page | Sign In | Register
Appellate Court Digests
Blog Home All Blogs
@@WEBSITE_ID@@

 

Search all posts for:   

 

Top tags: criminal procedure  statutes  constitutional law  Attorney Discipline  evidence  Sedgwick District  Sedgwick District Court  Criminal Law  motions  jury instructions  Appeals  sentencing  Johnson District Court  Shawnee District Court  Wyandotte District  jurisdiction  Shawnee District  juries  Sentences  Fourth Amendment  Johnson District  Reno District  Saline District  Sedgwick  8807  appellate procedure  habeas corpus  Reno District Court  search and seizure  contracts 

February 7, 2020 Digests

Posted By Administration, Monday, February 10, 2020

Kansas Court of Appeals

Civil

SEXUALLY VIOLENT PREDATORS
IN RE CARE AND TREATMENT OF JONES
WYANDOTTE DISTRICT COURT—REVERSED AND REMANDED
NO. 120,309—FEBRUARY 7, 2020

FACTS: Jones was convicted of rape in 2005. As the end of his prison sentence neared, the State filed a motion seeking to have Jones civilly committed under the Kansas Sexually Violent Predator Act. As part of its petition, the State designated Dr. Sutherland as an expert witness. In that capacity, Dr. Sutherland recommended civil commitment because Jones presented an unmanageable risk of reoffending. Based on this evidence, the district court found probable cause to believe that Jones was a sexually violent predator. Larned State Hospital hired Dr. Flesher as an expert witness for Jones. It was Dr. Flesher's opinion that Jones did not meet the criteria for designation as a sexually violent predator. Given the split between the experts, the district court elected to hear testimony from Dr. Flesher. After hearing that testimony, the district court ordered Jones released and dismissed the case. The State appeals.

ISSUE: (1) Whether the district court erred by granting summary judgment to Jones

HELD: There was no procedural or statutory bar that would prevent the district court from considering a motion for summary judgment after the probable cause determination was made. In this case, summary judgment was improper because there was evidence to support the State's claim that Jones should be civilly committed. Where there were opposing expert witness positions, summary judgment was inappropriate.

STATUTE: K.S.A. 2018 Supp. 59-29a04(a), -29a04(g), 60-212, -212(d), -256

 

TORT CLAIMS ACT
HENDERSON V. MONTGOMERY COUNTY BOARD OF COMMISSIONERS
MONTGOMERY DISTRICT COURT - AFFIRMED
NO. 120,369 – FEBRUARY 7, 2020

FACTS: Henderson picked up Garcia, who was hitchhiking. Unbeknownst to Henderson, Garcia was fleeing authorities after shooting a police officer in Oklahoma. Once law enforcement located Garcia, a chase ensued. Henderson attempted to let Garcia out of his truck, but Garcia exited shooting. Deputy Grimes returned fire, and Henderson was hit in the neck. He sued both Deputy Grimes and the Montgomery County Board of Commissioners for negligence. Both defendants moved for summary judgment, claiming that the public duty doctrine prevented any liability for either defendant. They also claimed that they were entitled to immunity under the discretionary function exemption to the Kansas Tort Claims Act. The district court granted summary judgment on both claims, and Henderson appeals.

ISSUES: (1) Application of the public duty doctrine; (2) application of the discretionary function exception to the KTCA

HELD: Instead of determining whether a special duty applied, the court assumes without deciding that a duty existed. The discretionary function exception is still good law. Guidelines for law enforcement on how to handle a felony high-risk stop are not mandatory and are instead best practice suggestions. All of the decisions made by Deputy Grimes were discretionary. For that reason, the discretionary function exception applies to excuse him and the Board from liability.

STATUTE: K.S.A. 75-6103(a), -6104, -6104(e), -6104(n)

 

criminal 

constitutional law—criminal law—evidence—fourth amendment—statutes
state v. arceo-rojas
geary district court—affirmed
no. 119,266—february 7, 2020

FACTS: Officer stopped Arceo-Rojas for driving too long in left lane and unsafe lane change, and after completing the traffic stop detained Arceo-Rojas until a K-9 unit arrived. K-9 alert led to discovery of 54 pounds of individually packaged bags of marijuana. Arceo-Rojas arrested and charged with drug offenses. She filed motion to suppress, arguing the officer had no reasonable suspicion to stop her and later detain her for purpose of a drug sniff.  District court denied the motion, finding the officer had reasonable and articulable suspicion that Arceo-Rojas was staying in left lane in violation of K.S.A. 8-1522, and that she failed to maintain a safe distance between her car and the car behind her when she changed lanes. Arceo-Rojas convicted in bench trial as charged. She appealed, alleging district court erred in denying motion to suppress.

ISSUES: (1) Traffic stop, (2) extension of traffic stop

HELD: K.S.A. 2018 Supp. 8-1522(c) is interpreted. “Overtaking and passing another vehicle” phrase in the statute shows a legislative intent to keep multilane roads and highways open for passing. Under facts in this case, officer had reasonable suspicion that Arceo-Rojas was driving in left lane without meeting any of the four statutory exceptions. Accordingly, the traffic stop was justified and no need to address whether officer also had reasonable suspicion that Arceo-Rojas committed an unsafe lane change in violation of K.S.A. 2018 Supp. 8-1522(a), or whether officer made a “reasonable mistake” of law when he stopped Arceo-Rojas based on holding in Heien v. North Carolina, 574 U.S. 54 (2014).

       Arceo-Rojas’ comparison to State v. DeMarco, 263 Kan. 727 (1998), is not persuasive. Under totality of the circumstances  (1) Arceo-Rojas’ implausible and inconsistent travel plans, (2) use of a strong but dissipating masking odor consistent with being sprayed as officer stopped the car, (3) vehicle rented in the name of a third party, and (4) a large black duffel bag in back of the car—gave officer grounds for reasonable suspicion for both the initial traffic stop and extending the stop. District court’s denial of the motion to suppress is affirmed.

DISSENT (Arnold-Burger, C.J.): Would reverse district court’s ruling and suppress all evidence obtained after the traffic stop, at a minimum, and certainly after Arceo-Rojas was given a warning ticket and told she was free to leave. Initial stop was unlawful. K.S.A. 2018 Supp. 8-1522(c) does not state how long a person may drive in the left lane before committing a violation, and a person of reasonable caution would not interpret Arceo-Rojas’ driving as a violation of the statute. Also, officer had no reasonable and articulable suspicion to detain Arceo-Rojas while waiting for drug dog to arrive and circle the car. The four factors cited by district court and the majority are criticized, finding none support a finding of reasonable suspicion either together or separately. Case highlights the problem with the introduction of and the overreliance on profiles of drug courier activity. Traits of a drug-courier profile as asserted by federal agents are listed, and absence in this case is noted of factors indicated by Kansas law enforcement officers as linked to highway drug trafficking. Agrees with Justice Rosen’s concurrence in State v. Schooler, 308 Kan. 333 (2018), on danger of “using the promise of freedom” to circumvent a driver’s constitutional rights.

STATUTES: K.S.A. 2018 Supp. 8-1522, -1522(a), -1522(c), -1522(c)(1); K.S.A. 2016 Supp. 8-1522(c); K.S.A. 60-404

constitutional law—criminal procedure—motions—statutes
state v. terning
chautauqua district court—affirmed
no. 119,904—february 7, 2020

FACTS: Terning entered 2008 no contest plea to aggravated kidnapping and rape. Consecutive 165-month prison terms imposed, plus 36 months postrelease supervision. Kansas appellate courts summarily dismissed Terning’s direct appeal, but mandate not issued until May 2017. That same month Terning filed motion to correct an illegal sentence, arguing he should have received lifetime postrelease supervision. State filed similar motion. Five months later Terning filed motion to withdraw his plea, arguing his plea was not knowing and voluntary because he was never informed of lifetime post-release supervision. District court denied motion to withdraw plea. Terning appealed.

ISSUE: (1) Withdrawal of guilty plea after sentencing

HELD: Under circumstances in this case, district court did not abuse its discretion in finding Terning failed to demonstrate he would not have entered his plea if he had been informed that he would be subject to lifetime postrelease supervision. Even though district court did not strictly comply with K.S.A. 22-3210 at the plea hearing, record supports district court’s finding that Terning’s plea was knowingly and understandingly made. Different conclusion reached in State v. Metzger,  (Kan.App. 2017)(unpublished opinion), rev. denied 307 Kan. 992 (2018), is distinguished. Even though Terning was unaware of lifetime postrelease supervision period when he pleaded, he was informed that he potentially faced a period of incarceration longer than his natural life, regardless of any postrelease term. And by pleading no contest to both charges he avoided an upward departure that could have resulted in an even longer prison sentence.

DISSENT (Standridge, J.): Would hold the district court erred as a matter of law in its legal conclusion that Terning failed to show manifest injustice to withdraw his plea. District court failed to advise Terning of the maximum penalty upon his no contest plea, which is a clear statutory violation of K.S.A. 2018 Supp. 22-3210(a)(2) and a due process constitutional violation. Strongly disagrees with majority’s adoption of new analytical framework which provides that due process is not violated by failure to advise a criminal defendant of applicability of a lifetime postrelease supervisory period if the combined prison sentences assigned to the defendant are not meaningfully different from life in prison. Metzger sets forth a better analytical framework. Application of factors in State v. Edgar, 281 Kan. 30 (2006), and State v. Moses, 280 Kan. 939 (2006), to facts in this case tips balance in favor of finding manifest injustice under K.S.A. 2018 Supp. 22-3210(d)(2).

STATUTES: K.S.A. 2018 Supp. 22-3210(a)(2), -3210(d), -3210(d)(1), -3210(d)(2), -3717(d)(1)(G); K.S.A. 2007 Supp. 75-5217(c)-(d); K.S.A. 2006 Supp. 22-3717(d)(1)(G), -3717(d)(2)(A); K.S.A. 21-4720(b)(2), -4720(b)(5), 22-3210, -3504

 

Tags:  Constitutional Law  Criminal Law  Criminal Procedure  Evidence  Fourth Amendment  Montgomery District Court  Montgomery District Court.  Motions Chautauqua District Court  sexually violent predators  Statutes  Tort Claims Act  Wyandotte District Court 

Share |
PermalinkComments (0)
 

October 18, 2019 Digests

Posted By Administration, Monday, October 21, 2019

Kansas Court of Appeals

Civil

CHILD IN NEED OF CARE
IN RE D.H.
ELLIS DISTRICT COURT—REVERSED AND REMANDED
NO. 121,131—OCTOBER 18, 2019

FACTS: D.H. was born in December 2007. Mother and Father were not married and their relationship ended soon after D.H. was born. When D.H. was an infant, the State alleged that D.H. was a child in need of care. In a companion paternity case, Father's paternity was legally established. Father used that paternity case to seek residency and parenting time decisions for D.H. After a hearing, Father was given primary residency of D.H., with Mother having parenting time once per week. Soon after this hearing, Mother moved out of state. She delivered a son shortly after that, who was later diagnosed with autism. Mother sought and received services for this child, and also sought and received financial and residential stability for herself. For the next six years, Mother spoke on the phone with D.H., but did not actually visit in person. Mother finally had a personal visit with D.H. in 2017. Father died by suicide in 2018. Because of his death, D.H. was placed in protective custody and later sent to live with her paternal grandfather. The State filed a CINC petition. Mother traveled to personally appear at the temporary custody hearing. After hearing evidence, the district court found that D.H. was a CINC because Mother abandoned her. Mother appealed.

ISSUES: (1) Relevant time period; (2) sufficiency of the evidence

HELD: The district court found that Mother abandoned D.H. in 2009, meaning that D.H. was without adequate parental control at the time of the CINC hearing. The plain language of the statute does not require the district court to make its adjudication decision based only on the circumstances that exist on the day of the adjudication hearing. Rather, the district court's decision should be guided by the temporal language used in the relevant statutory subsection that is being considered. There was insufficient evidence presented that D.H. was in need of care.

STATUTE: K.S.A. 2018 Supp. 38-2202, -2202(a), -2202(d), -2250, -2251

JURY INSTRUCTIONS—SEXUALLY VIOLENT PREDATORS
IN RE CARE AND TREATMENT OF QUILLEN
JOHNSON DISTRICT COURT—VACATED AND REMANDED
NO. 120,184—OCTOBER 18, 2019

FACTS: Richard Quillen was committed as a sexually violent predator in 2006. As part of his civil commitment, Quillen was entitled to an annual review hearing. In 2013, Quillen asked for a jury trial when he challenged the Kansas Department for Aging and Disability Services' recommendation that he remain in custody. That request was granted, and after a hearing the jury found that the State met its burden to prove that Quillen did not meet the criteria for transitional release. Quillen sought a new trial, claiming the district court violated his due process rights by failing to instruct the jury on "serious difficulty controlling behavior" as a separate element that the State must prove. The district court denied the motion and Quillen appealed.

ISSUE: (1) Jury instructions

HELD: Quillen questioned whether the elements required to prove a committed person is not safe to be sent to transitional release are the same as those required to initially commit an individual. They are. Despite statutory changes and a consent decree, Quillen correctly notes that the State is constitutionally required to prove that Quillen would have serious difficulty controlling his behavior if transitionally released. The district court erred by not adding that essential element to the jury instructions, and the error was prejudicial. Quillen is entitled to a new trial.

STATUTE: K.S.A. 2018 Supp. 59-29a02(a), -29a07(a), -29a08, -29a08(a), -29a08(c), -29a08(d), -29a08(g)

Tags:  CINC  Ellis District Court  Johnson District Court  Sexually violent predators 

Share |
PermalinkComments (0)