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April 29, 2016, Appellate Court Digests
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Kansas Supreme Court – Civil

Appeal and error; Jurisdiction
Ullery v. Othick
Douglas District Court – Reversed, case is remanded to Court of Appeals
No. 112,469 – Apr 29, 2016

FACTS: The Ullery plaintiffs filed a lawsuit after a car accident killed one of their family members. After litigation commenced, the district court issued rulings on various motions for summary judgment. Two months later, the plaintiffs asked the district court to certify the journal entry as a final judgment under K.S.A. 60-254(b) so that they could take an immediate appeal of those rulings. After the case was docketed, the Court of Appeals' motions panel issued a show cause order asking the parties to explain whether, under Prime Lending II v. Trolley's Real Estate Holdings, the district court was allowed to retroactively certify a decision as a final judgment. After evaluating the responses, the Court of Appeals dismissed the appeal because of the retroactive certification, and the Supreme Court granted the petition for review.

ISSUE: Whether a District Court May Retroactively Certify a Decision as Final Under K.S.A. 60-254(b)

HELD: K.S.A. 60-254(b) permits the district court to modify a prior journal entry. Thus, there is nothing preventing the district court from modifying a prior ruling to include the "no just reason for delay" language that is required by K.S.A. 60-254(b). Once the district court issues a journal entry which includes the "no just reason for delay" language, the 30-day notice of appeal clock begins to run, and the appellate court has jurisdiction to consider the merits of any appeal.

STATUTES: K.S.A. 2015 Supp. 60-254, -254(a), -254(b), -258, -2103

Kansas Supreme Court – Criminal

Crimes and punishment; Criminal procedure; Jury instructions
State v. Dupree
Sedgwick District Court – Affirmed
No. 110,311 – Apr 29, 2016

FACTS: Dupree convicted of felony murder, kidnapping, aggravated burglary, aggravated robbery, aggravated child endangerment, and aggravated assault. On appeal he claimed: (1) the information charging aiding and abetting aggravated assault and aggravated child endangerment was insufficient to confer subject matter jurisdiction because no evidence he committed these offenses as a principal; (2) State’s oral amendment at close of evidence to change underlying felony of felony-murder charge was not sufficiently specific, and failure to file amended complaint was reversible error; (3) insufficient evidence supported the felony-murder conviction because jury instructions encompassed a completed burglary and not an attempted burglary; (4) instructions did not properly instruct jury on aiding and abetting liability, the jury should have been instructed on compulsion defense, and error to not instruct jury on lesser-included offenses for felony murder; (5) abuse of district court’s discretion to allow case detective to sit at or near prosecution’s table, and to exempt case detective from general sequestration order; and (6) cumulative error denied him a fair trial.

ISSUES: (1) Insufficient charging information, (2) Oral amendment of felony-murder charge, (3) Sufficiency of evidence supporting felony-murder charge, (4) Jury instructions, (5) Case detective at prosecution’s table during trial, (6) Cumulative error

HELD: No departure from longstanding rule applied in State v. Williams, 299 Kan. 509 (2014), to prior version of aiding and abetting statute. Under K.S.A. 2015 Supp. 21-5210, State is not required to include “aiding and abetting” in charging document to pursue theory of accomplice liability at trial.

State’s oral amendment to felony-murder charge, and failure to memorialize the amendment by filing an amended complaint, did not deprive district court of jurisdiction or otherwise constitute reversible error in this case.

Sufficient evidence supported the felony-murder conviction. Victim’s death occurred within the res gestae of felony murder, and jury instruction reflected facts of the case and Kansas precedent. K.S.A. 2015 Sup. 21-5402(a) does not require State to prove whether the killing specifically occurred once intruders crossed the threshold, as opposed to while they were forcing their way into the home.

Instructions regarding felony murder, aggravated robbery, and aiding and abetting properly and fairly stated the law as applied to facts of the case. No reversible error by district court in declining to instruct jury on compulsion defense which was legally available but not factually warranted. As in State v. Todd, 299 Kan. 263 (2014), district court did not err in failing to give a lesser included offense instruction for felony murder.

After Dupree’s trial, State v. Sampson, 297 Kan. 288 (2013), abrogated prior holdings that district court had discretion to allow testifying law enforcement officer to sit at prosecution table. Even assuming abuse of discretion based on reasons articulated in Sampson, the assumed error was harmless in light of overwhelming evidence against Dupree.

The single error assumed in this case does not constitute cumulative error.

STATUTES: K.S.A. 2015 Supp. 21-5206, -5206(a), -5206(b), -5210, -5402(a), -5402(a)(2), 22-3601(b)(3); K.S.A. 2013 Supp. 21-5109, -5402(d), -5402(e); K.S.A. 2011 Supp. 21-5210(a); K.S.A. 2010 Supp. 21-5210; K.S.A. 21-3205, -3205(1), 22-3201(b), -3201(e); G.S. 1949, 62-1016

Kansas Supreme Court – Criminal

Constitutional law; Criminal procedure; Statutes
State v. Lee
Sedgwick District Court – Reversed
No. 113,562 – Apr 29, 2016

FACTS: Lee’s murder conviction and hard-40 prison term were affirmed in 1999, with no challenge to validity the sentencing procedure. Lee filed 2008 motion to correct sentence, alleging due process violation by no waiver of right to have jury participate in sentencing. In unpublished 2011 decision, Supreme Court affirmed district court’s denial of the motion. Based on Alleyne v. United States, 570 U.S. __ (2013), and State v. Soto, 299 Kan. 102 (2014), Lee filed second motion to correct an illegal sentence. District court granted the motion, finding the sentencing procedure violated Alleyne, and retroactivity was not relevant and would be unfair. State appealed.

ISSUE: Motion to correct illegal sentence

HELD: Decisions in Alleyne and Soto do not render judgments illegal that were final before those decisions were issued. Lee’s claim is constitutional, and a motion to correct an illegal sentence cannot be used to attack the constitutionality of a sentencing statute. District court’s decision is reversed, and order for resentencing is vacated.

STATUTES: K.S.A. 22-3504, -3504(1)

Kansas Court of Appeals – Civil

Child support; Divorce; Due process
Fuller v. Fuller
McPherson District Court – Vacated and remanded with directions
No. 113,948 – Apr 29, 2016

FACTS: The parties were divorced in 2008. Christina had sole legal custody of the couple's children, but Brian was allowed supervised parenting time. After the divorce, Christina moved to an undisclosed location in Missouri. Both Brian and Christina traveled for Brian's visits with the children. Visits eventually stopped because the children refused to cooperate, and staff had concerns about the extent to which Christina was negatively influencing the children regarding their father. Once Brian's spousal maintenance obligation ended, the court trustee filed a motion to modify child support on Christina's behalf. In response to that motion to modify, Brian filed a new domestic relations affidavit which did not request a long-distance parenting time cost adjustment. The cost adjustment was not mentioned until a hearing on the motion to modify, when Brian's counsel asked the court to credit him $324 per month to cover travel expenses. Brian was not regularly exercising his visitation rights, but the district court found that was due to Christina's lack of cooperation and negative influence over the children. Based on that fact, the district magistrate judge granted Brian's motion for the cost adjustment, but made it clear that Brian was only entitled to the adjustment if he was regularly exercising parenting time to the best of his ability. Christina appealed that modification to the district court. The district magistrate judge's ruling was affirmed, and Christina appealed.

ISSUE: Whether it is a due process violation to allow a long-distance parenting time cost adjustment without specific notice

HELD: The issue of child support modification was put before the court when the court trustee filed a motion to modify on Christina's behalf. But the version of Supreme Court Rule 139(e)-(g) in effect when the motion to modify was filed required any party challenging a motion to modify child support to "apprise the proponent in advance of any area of possible disagreement." Although Brian responded to the motion to modify with a new domestic relations affidavit, he failed to provide a new child support worksheet. The worksheet would presumably have shown the requested adjustment for long-distance visitation costs. In the absence of such a worksheet, the trustee did not learn about the requested adjustment until right before the hearing on the motion to modify, and that did not constitute sufficient notice. The matter was remanded to the district court for a de novo hearing on whether Brian is entitled to a long-distance parenting time cost adjustment.


Kansas Court of Appeals – Criminal

Constitutional law; Evidence; Fourth amendment
State v. Kraemer
Saline District Court – Affirmed
No. 112,787 – Apr 29, 2016

FACTS: Kraemer arrested for DUI after routine traffic stop for failing to use turn signal, Kraemer’s admission of drinking, officer’s detection of alcohol odor, Kraemer’s unsteadiness and field sobriety test performance, and his breath-alcohol test result. Citing outside interference of a cat during field sobriety testing, Kraemer filed motion to suppress the breath-alcohol test results because officer lacked probable cause to arrest. Kraemer filed second motion to suppress, claiming consent to breath-alcohol test was coerced because officer told him he could be charged with another crime if he refused testing. District court found probable cause for the arrest. District court also found Kraemer’s consent was coerced because criminal refusal statute, K.S.A. 2015 Supp. 8-1025, was unconstitutional, but denied motions to suppress because good-faith exception to exclusionary rule applied where officer acted in good faith reliance on facially valid statute that required officer to advise Kraemer of criminal consequences of refusing testing. Kraemer appealed on both issues.

ISSUES: (1) Probable cause, (2) Consent, coercion, and good-faith exception to exclusionary rule

HELD: Under totality of circumstances, substantial evidence supported district court’s finding of probable cause.

Relying on State v. Ryce, 303 Kan. 899 (2016) (mandate not issued; motion for rehearing or modification pending), K.S.A. 2015 Supp. 8-1025 is unconstitutional on its face. Relying on State v. Nece, 303 Kan. 888 (2016) (mandate not issued; motion for rehearing or modification pending), Kraemer’s consent to testing was not freely and voluntarily given. Exclusionary rule, however, does not apply to evidence obtained by police acting in objective reasonable reliance upon K.S.A. 2015 Supp. 8-1025 prior to Ryce and Neece.


Kansas Court of Appeals – Criminal

State v. Vasquez
Sedgwick District Court – Sentence vacated, remanded
No. 113,473 – Apr 29, 2016

FACTS: Vasquez convicted in 1978 of four counts of burglary, and in 1982 of attempted robbery. In 2012 he pled guilty to one count of aggravated escape from custody. He raised no objection or appeal regarding his criminal history report of prior person felonies. In 2014, based on State v. Murdock, 299 Kan. 312 (2014)(modified and subsequently overruled), and State v. Dickey, 301 Kan. 1018 (2015), he filed motion to correct an illegal sentence claiming his pre-1993 felonies should have been scored as nonperson felonies, and that over-classification of the pre-KSGA convictions resulted in an illegal sentence under Apprendi and Dickey. District court summarily denied the motion. Vasquez appealed. State argued appellate review is procedurally barred by doctrines of waiver and res judicata, that Dickey should not be retroactively applied, and that State v. Warrior, 303 Kan. __ (2016), later held a motion to correct illegal sentence is not appropriate to challenge constitutionality of a sentence.

ISSUES: (1) Procedural issues, (2) Illegal sentence

HELD: Procedural arguments based on doctrines of waiver and res judicata are defeated by Dickey and State v. Neal, 292 Kan. 625 (2011). Retroactivity argument is defeated because Dickey applied constitutional rule announced in Apprendi, thus that 2000 decision is the relevant date for retroactivity analysis. And unlike claim of illegal sentence in Warrior, a claim under Dickey falls squarely within scope of relief afforded under K.S.A. 22-3504.

As in Dickey, sentencing court violated Vasquez’ constitutional right by finding the four 1978 burglaries involved a dwelling, and thus erroneously misclassified those prior burglaries as person felonies. Resulting illegal sentence did not comply with the applicable statutory provision regarding the term of punishment authorized. Vasquez waived review of his 1982 attempted robbery conviction by failing to brief any issue comparing attempted robbery as defined in 1982 and 2011. Sentence vacated and case remanded with directions to reclassify 1978 burglaries as nonperson offenses, to recalculate criminal history score based on reclassification, and to resentence Vasquez based on recalculated criminal history score.

STATUTES: K.S.A. 2015 Supp. 21-6811(d); K.S.A. 2005 Supp. 21-4635; K.S.A. 21-3715(a), 22-3504, -3504(1)

Kansas Court of Appeals – Criminal

State v. Woolverton
Johnson District Court – Affirmed
No. 113,211 – Apr 29, 2016

FACTS: Woolverton convicted by judge of misdemeanor domestic-violence offense, K.S.A. 2015 Supp. 21-5414(b)(1). On appeal Woolverton claimed the offense was serious enough to constitutionally require a jury trial, a right he never agreed to waive. He also claimed he was never advised of statutory right to jury trial.

ISSUES: (1) Constitutional right to jury trial, (2) Statutory right to jury trial

HELD: A misdemeanor domestic-battery offense - punishable by no more than 6 months jail, fine up to $500, participation in and payment for domestic-violence-offender assessment, and compliance with assessment’s recommendations - is a petty offense for which there is no constitutional right to jury trial.

Statutory right to jury trial in a misdemeanor case requires a defendant to request a jury trial within the statutory time frame. Woolverton made no such request, thus no violation of his statutory right to a jury trial.

STATUTES: K.S.A. 2015 Supp. 20-369, 21-5414(b)(1), -6604(p), -6608(a), 22-2307, -2307(b)(1), -2307(b)(10), -2307(b)(11), 44-1132; K.S.A. 22-2309, -3404(1)