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April 14, 2017, Appellate Court Digests
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Kansas Supreme Court

Attorney Discipline

NO. 116,544—APRIL 14, 2017

FACTS: After she did not file an answer or appear, a panel of the Kansas Board for Discipline of Attorneys determined that Fahrenholtz violated KRPC 1.1 (competence), 1.3 (communication), 1.15(a) (safekeeping property), 1.16 (termination of representation), 3.2 (expediting litigation), and Rule 211(b) (failure to file an answer in a disciplinary proceeding). The violations arose after Fahrenholtz was disbarred in two states and suspended in Kansas for failing to comply with annual licensing requirements. The Office of the Disciplinary Administrator learned of the discipline in other states and docketed a complaint here. But Fahrenholtz did not respond to any of the letters sent by the office and did not file an answer to the formal complaint.

HEARING PANEL: After concluding that Fahrenholtz received proper notice of hearing, the hearing panel agreed with the disciplinary administrator and recommended disbarment.

HELD: The court adopted the hearing panel's findings and conclusions. The court also agreed with the recommended discipline of disbarment.


NO. 111,987—APRIL 14, 2017

FACTS: Apodaca was a police officer who responded to a one-vehicle accident on a state highway. Willmore, the driver, had left the disabled vehicle on the road without any lights. When Apodaca responded to the accident he hit Willmore's vehicle and suffered serious injuries. Apodaca received workers compensation benefits and also filed suit against Willmore, claiming that his negligence caused Apodaca to suffer personal injuries. In granting Willmore's motion for summary judgment, the district court extended the "firefighter rule" to law enforcement officers, holding that Apodaca was barred from recovering in a negligence action for injuries that arose within the scope of his duties as a law enforcement officer. The Court of Appeals affirmed, and Apodaca's petition for review was granted.

ISSUES: (1) Should the firefighter's rule be extended to law enforcement officers; (2) Does an exception to the firefighter's rule allow Apodaca's claim to survive

HELD: There has been no legislative limitation of the firefighter's rule in Kansas. A majority of other jurisdictions have extended the firefighter's rule to police and other public safety officers. An extension of the rule to law enforcement officers is the wisest course for Kansas and it is so extended. None of the three exceptions to the firefighter's rule apply here, rendering summary judgment appropriate. And a fourth exception was not properly raised before the district court, which means the court is without jurisdiction to consider the merits of Apodaca's argument.

DISSENT: (Johnson, J., joined by Biles, J. as to the public policy issue) The firefighter's rule is "constitutionally suspect", and public policy cannot justify the denial of an injured person a right to remedy based solely on a job classification. The majority also fails to define exactly what sort of law enforcement officer is covered by this expanded rule.

DISSENT: (Stegall, J.) He agrees that Kansas has a firefighter's rule that extends to law enforcement officers. But this is a traditional duty standard and not a rule. A jury should get to decide whether Apodaca is entitled to recover for Willmore's negligence.

[No statutes cited]. 


criminal procedure—sentences—statutes
state v. clark
sedgwick district court—affirmed
no. 114,397—april 14, 2017

FACTS: Clark convicted of first-degree murder and attempted first-degree murder for October 1994 crimes. His 1995 sentence included a hard 25 life sentence. Some 20 years later Clark filed motions to correct an illegal sentence, arguing in part the statute authorizing the hard 25 sentence was not yet in effect when Clark was sentenced. District court denied the motions. Clark appealed.

ISSUE: Motion to Correct Illegal Sentence

HELD: District court’s decision is affirmed. The hard 25 sentencing statute, effective July 1, 1994, applies to certain crimes committed on or after that date, and thus applies to Clark’s crimes.

STATUTES: K.S.A. 22-3504, -223504(1), -3601(b)(3), -3601(b)(4); K.S.A. 1994 Supp. 22-3717, 3717(b)(1)


appeals—criminal procedure—statutes
state v. cotton
wyandotte district court—affirmed
no. 114,351—april 14, 2017

FACTS: Cotton’s 1988 convictions were affirmed on direct appeal. Twenty-six years later, he filed two pro se motions “to set aside a void judgment.” District court summarily denied both as untimely filed whether considered as a request to arrest judgment or for a judgment of acquittal, and stated the defendant appeared to be past any deadline for post-conviction relief. On appeal Cotton argues for treatment of his pro se submissions as a motion to correct an illegal sentence.

ISSUE: Motion to Correct an Illegal Sentence

HELD: A motion to correct an illegal sentence would not be time barred. Assuming without deciding that Cotton’s motion could be so construed, a motion to correct an illegal sentence would not be proper. Cotton’s specific allegations of error plainly attack his conviction rather than his sentence, and a claim of being denied due process cannot be remedied in a motion to correct an illegal sentence.

STATUTES: K.S.A. 2015 Supp. 22-3601(b)(3); K.S.A. 22-3419, -3502, -3504, -3504(1)


Crimes and punishment—statutes
state v. toliver
riley district court—reversed and remanded; court of appeals—affirmed
no. 112,509—april 14, 2017

FACTS: Toliver spit on Officer Johnson while Toliver was confined in police car after his arrest and during delivery at jail. Toliver was charged and convicted of various offenses including felony battery against a law-enforcement officer under K.S.A. 2013 Supp. 21-5413(c)(3)(D), defining battery by a confined person against a city or county “correctional officer or employee.” In unpublished opinion Court of Appeals reversed that conviction, holding the State failed to prove that Johnson was a correctional officer or employee. State petitioned for review. It conceded that Johnson was neither a correctional officer nor a correctional employee, but argued the statute required only a showing that Johnson was a county employee engaged in work at the county jail.

ISSUE: Statutory Interpretation - K.S.A. 2013 Supp. 21-5413(c)(3)(D)

HELD: Wording in statute was ambiguous as to whether “correctional” modifies both “officer” and “employee,” or modifies only “officer.” Standard English grammar rule governing modifiers of nouns in a sequence is applied, holding the word “correctional” in K.S.A. 2013 Supp. 21-5413(c)(3)(D) modifies both “officer” and “employee.” Toliver’s felony conviction and sentence for battery against a law enforcement officer is vacated. Case is remanded to district court for resentencing.

STATUTES: K.S.A. 2016 Supp. 71-201b; K.S.A. 2013 Supp. 21-5413, -5413(c), -5413(c)(1)(B), -5413(c)(3)(D); K.S.A. 13-14,103, 19-2649, 22-4407, 38-1819(a), 40-2807, 44-1403, 49-402e, 58-1404, 60-521, 65-6015(b), 73-213, 74-4902, -4914e(1)(a), 75-5202, -5226, 79-3234, 83-322


Kansas Court of Appeals


appeals—criminal procedure—sentences—statutes
state v. cooper
saline district court—appeal dismissed
no. 116,738—april 14, 2016

FACTS: Cooper was convicted of possession of a controlled substance and other crimes. District court imposed the term sentences recommended in plea agreement, and granted Cooper’s motion for dispositional departure to probation. Cooper appealed the sentence. Kansas Supreme Court granted Cooper’s motion for summary disposition of the appeal.

ISSUE: Jurisdiction to Review Sentencing Appeal

HELD: State v. Looney, 299 Kan. 903 (2014), is distinguished on facts in this case. Even though K.S.A. 2016 Supp. 21-6820(a) provides that a departure sentence is subject to appeal by the defendant or the State, an appellate court shall not review a departure sentence resulting from an agreement between the State and defendant which the sentencing court approves on the record. Here, the district court gave Cooper the precise sentence he requested which included a departure, and there is no claim the sentence is illegal. K.S.A. 2016 Supp. 21-6820(c)(2) divests the appellate court of jurisdiction to consider Cooper’s appeal.  

STATUTES: K.S.A. 2016 Supp. 21-6801et seq., -6820(1), -6820 (c)(1), -6820(c)(2), -6820(g), -6820(h); K.S.A. 21-4721(a), -4721(c)(2)