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December 11, 2015, Appellate Court Digests
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Kansas Court of Appeals – Civil

In Re A.S., R.J.S., and N.A.S.
Miami District Court – Appeal dismissed
113,315 – December 11, 2015

FACTS: A.S., R.J.S, and N.A.S. were adjudicated children in need of care (CINC)—a finding not challenged on appeal. The State believed the reintegration plan failed and filed a motion to terminate the parental rights of R.S. (natural father) and E.S. (natural mother). The district court denied the State's motion. The State appealed pursuant to K.S.A. 2014 Supp. 38-2273(a). R.S. and E.S. objected to the State's appeal, claiming this court does not have jurisdiction.

ISSUES: (1) Child In Need of Care, and (2) Jurisdiction of State Appeal

HELD: Court stated under the Revised Kansas Code for Care of Children, K.S.A. 2014 Supp. 38-2273(a) is a specific statute controlling the right to appeal. It limits appealable orders to five types: temporary custody, adjudication, disposition, finding of unfitness, or termination of parental rights. Court held K.S.A. 2014 Supp. 38-2273(a) does not provide the right to appeal the denial of a motion to terminate parental rights. Appeal dismissed.

STATUTES: K.S.A. 38-2255, -2256, -2269, -2273

Kansas Court of Appeals – Criminal

State v. Delacruz
Reno District Court – Affirmed
111,795 – December 11, 2015

FACTS: After Jose Delacruz was convicted of aggravated burglary and acquitted of first-degree murder, he refused to testify against a codefendant. Delacruz was convicted of direct criminal contempt of court and was sentenced to 9 years' imprisonment to run consecutive to his previous sentence. Delacruz raised six issues: (1) that he was exercising his right to remain silent under the Fifth Amendment to the United States Constitution; (2) that a special prosecutor should have tried the case; (3) that his contempt was a single ongoing event rather than three separate events; (4) that the delay in filing and docketing his appeal deprived him of due process; (5) that his 9-year sentence was excessive and the result of bias and prejudice; and (6) that cumulative errors deprived him of due process and a fair trial.

ISSUES: Contempt of Court

HELD: First, Court rejected Delacruz' claim that he was validly exercising his right to remain silent under the Fifth Amendment to the United States Constitution. Court stated that under the plain language of K.S.A. 22-3415(c), Delacruz failed to establish that his testimony might form the basis for a violation of federal law. Moreover, while the letter from the federal prosecutor was not a formal grant of immunity, it clearly stated that no federal prosecution would be forthcoming. Second, Court stated that aside from Delacruz' allegations of bias against the district attorney, he failed to show why a special prosecutor was necessary in this case. Moreover, even if the district attorney was biased against Delacruz which may have led to an excessive sentencing recommendation, the trial court judge makes the ultimate sentencing decision. Court held there was nothing else a special prosecutor could have done differently in this case. Last, Court found no merit in Delacruz' arguments that his contempt was a single ongoing event rather than three separate events, that the delay in filing and docketing his appeal deprived him of due process, that his 9-year sentence was excessive, and there was no error to cumulate.

STATUTES: K.S.A. 20-1201, -1202, -1203, -1206; K.S.A. 21-3805; K.S.A. 22-3415

State v. Morales
Reno District Court - Affirmed
No. 113,730 - December 11, 2015

FACTS: Around 2:30 AM, officer spotted car stopped on side of remote rural road with lights on As officer pulled up, the car’s brake lights engaged. Believing car was attempting to drive away, officer reported location and tag number to dispatch and activated emergency lights. Officer administered sobriety tests upon smelling alcohol and observing Morales’ condition. State charged Morales with DUI. Morales moved to suppress all evidence obtained from the alleged improper stop. State maintained the stop was a valid public safety stop. District court granted the motion, finding no specific and articulable facts had been presented as to why this stop needed to be made. State appealed.

ISSUE: Public Safety Stop

HELD: District court’s suppression of evidence is affirmed. Under circumstances of this case, community caretaking exception does not apply, and seizure of Morales’ vehicle was impermissible. Court discusses public safety stops in Kansas, and distinguishes this case from Nickelson v. Kansas Dept. of Revenue, 33 Kan.App.2d 359 (2004). Here, county’s community caretaking policy contained an expressed investigatory component where the detection of crime was principle reason for running license plate tag in a rural area. This violates legal principles in City of Topeka v. Grabauskas, 33 Kan.App.2d 210 (2004), State v. Gonzales, 36 Kan.App.2d 446 (2006), and State v. Marx, 289 Kan. 657 (2009). Also, even if solely based upon objective evaluation of the evidence, seizure of Morales after he was prepared to drive his vehicle away cannot be sustained as a bona fide community caretaking function within meaning of Kansas legal precedents.