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October 7, 2016, Appellate Court Digests
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Kansas Supreme Court – Criminal

constitution–criminal procedure–crimes and punishment–statutes
State v. Dickey
Saline District Court – Vacated in part and remanded
Court of Appeals – Reversed
No. 110,325 – October 7, 2016

FACTS: Dickey committed felony theft while on probation in previous cases. 2013 hearing held for sentencing on the felony offense, and for revocation sentences in the earlier cases. Multiple appeals followed, including Dickey’s claim that his criminal history score improperly classified his 1992 juvenile adjudication as a person offense. In State v. Dickey, 301 Kan. 1018 (2015)(Dickey I), Kansas Supreme Court held that where there has been a misclassification of a prior conviction, the resulting sentence is illegal and can be corrected at any time pursuant to K.S.A. 22-3504. This consolidated appeal presented that same illegal sentence claim regarding his underlying sentences. State cited procedural difference between Dickey’s direct sentencing appeal and appeals from sentences imposed after probation revocations. Citing State v. Moncla, 301 Kan. 549 (2015), State also argued Dickey could not use motion to correct illegal sentence to resolve a constitutional claim.

ISSUE: Correction of an illegal sentence

HELD: Substantive holding of Dickey I is clarified as not repudiating rule stated in Moncla, which is reaffirmed. As demonstrated in Dickey I, the proper classification of a prior crime is exclusively a matter of state statutory law. Claim in this consolidated appeal is identical to, and controlled by, Dickey I. State’s attempt to impose a procedural bar is unavailing. Dickey’s sentences are vacated and matter is remanded to district court for recalculation of Dickey’s criminal history and resentencing.

CONCURRENCE (Johnson, J.): Concurs in the result, but questions majority’s express reaffirmation of Moncla rule. Reads majority opinion as holding Dickey’s sentences were illegal as matter of statutory law, thus majority’s reaffirmation of Moncla rule would be dictum. Also believes broad statement in Moncla should be refined or clarified to differentiate between a permissible constitutional challenge to the sentence imposed, and an impermissible constitutional challenge to the statute under which it was imposed.

STATUTES: K.S.A. 2012 Supp. 21-6809; K.S.A. 22-3504, -3504(1)

Kansas Court of Appeals – Criminal

constitution–jury instructions–prosecutors–statutes
State v. White
Cheyenne District Court – Affirmed
No. 113,963 – October 7, 2016

FACTS: White proceeded pro se during contentious divorce, making angry statements and threats about wife’s attorney and county sheriff. Statements White made by phone and email, and in person to county law enforcement, led to evacuation of Cheyenne County Courthouse and attorney’s office.  Notwithstanding defense that White was making political statements aimed at perceived corruption in Cheyenne County, jury convicted White of aggravated criminal threat, telephone harassment, and stalking. On appeal White claimed: (1) error during closing argument denied White a fair trial when prosecutor called White’s theory of defense “ridiculous;” (2) PIK Crim. 4th 51.010 improperly told jury that it “should” find defendant guilty if no reasonable doubt as to claims to be proved by State; (3) K.S.A. 2015 Supp. 21-5415(a)(1) is unconstitutionally vague because use of word “fear” makes statute unclear and may encompass unreasonable fears or fears unconnected to threat of violence; and (4) K.S.A. 2015 Supp. 21-5415(a)(1) is unconstitutionally overbroad, both facially and as applied.

ISSUES: (1) Prosecutorial misconduct, (2) jury instruction, (3) constitutional vagueness challenge to K.S.A. 2015 supp. 21-5415(a)(1), (4) constitutional overbreath challenge to K.S.A. 2015 supp. 21-5415(a)(1)

HELD: Citing State v. Douglas, 274 Kan. 96 (2002), court assumes for purposes of this appeal that use of “ridiculous” was outside wide latitude allowed prosecutors during closing argument, but no clear error in this case, or prejudice denying White a fair trial.  Prosecutors are cautioned against using strident words then trying to attack a defendant’s theory of defense.

Use of “should” in PIK Crim. 4th 51.010 was legally accurate and did not direct jury to a verdict in favor of State.  Similar holding by previous appellate panels are cited.

Constitutional vagueness challenge is considered for first time on appeal.  K.S.A. 2015 Supp. 21-5415(a)(1) is not unconstitutionally vague because it uses the word “fear” to describe criminal conduct.  The word “fear” is understood by persons of common intelligence to mean an unpleasant emotion caused by a belief that someone or something is dangerous, likely to cause pain, or a threat.   A victim’s emotional state or response to a defendant’s threat, whether reasonable or not, is not a standard for enforcement and is therefore irrelevant.  A defendant’s decision to make the threat of violence triggers criminal liability.

K.S.A. 2015 Supp. 21-5415(a)(1) is not overbroad. Statute, on its face, is clearly designed to prohibit a limited class of impermissible speech - threats to commit violence, i.e., true threats.  Statute does not require State to prove the defendant actually intended to commit violence.  Once threat of violence is conveyed, that is sufficient.  Challenge to statute as applied, which essentially challenges sufficiency of the evidence, is deemed waived and abandoned.

STATUTES: K.S.A. 2015 Supp. 21-5415(a)(1); K.S.A. 2013 Supp. 21-5415(a)(3), -5415(b), -5427(a)(2), -6206(a)(1)(B), -6206(a)(1)(C)