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  • 10 Sep 2019 1:28 PM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions today:

    Appeal No. 114,403: Sage Hill v. State of Kansas

    Archived oral argument video

    The Supreme Court expanded the scope of employment retaliation claims in the state by ruling that an employee can sue an employer for job transfers and other actions that could dissuade a reasonable person from exercising rights under the Kansas Civil Service Act. The ruling reversed a Court of Appeals decision that said employment retaliation claims should be limited to firings and demotions. The decision came in a case brought by Kansas Highway Patrol Trooper Sage Hill, who alleges the Patrol retaliated by requiring him to move across the state to keep his job after the Kansas Civil Service Board ordered the agency to reinstate him to work after he was fired.

    "We hold the common-law tort of retaliation may be premised on an employer's action short of dismissal or demotion, such as the involuntary job relocation alleged in this case," wrote Justice Dan Biles for the court majority. "To hold otherwise would undermine the purposes supporting common-law job retaliation claims and the important public policy expressed in the Kansas Civil Service Act."

    Justices Caleb Stegall and Marla Luckert dissented, arguing the Patrol was immune from the claim regardless of its merits. The case now returns to Shawnee County District Court for further proceedings.

    Appeal No. 118,239: Northern Natural Gas Co. v. ONEOK Field Services Co., LLC, et al

    Archived oral argument video

    In a 5-2 decision, the Supreme Court ruled in favor of Northern Natural Gas Company in a decade-long dispute over the right to produce Northern's natural gas that migrated from Northern's underground storage facilities to property owned by others. The court's ruling addressed gas produced after June 2, 2010, when Northern received permission from the Federal Energy Commission to expand its storage area. In an opinion written by Justice Dan Biles, the court majority held that once the new boundaries were certified, landowners could no longer continue producing and selling the migrated gas from wells within the new boundaries. The case now returns to Pratt County District Court for further proceedings.

    Justices Lee Johnson and Caleb Stegall dissented, arguing the migrated gas belonged to the landowners until Northern could legally condemn the storage rights and pay the landowners for those rights. The controversy has been in litigation since 2008 in both state and federal courts.

    Appeal No. 114,589: State of Kansas v. Giosbel Perez-Medina

    Archived oral argument video

    The Supreme Court affirmed a Court of Appeals decision affirming Perez-Medina's aggravated battery conviction by a jury in Ford County District Court. During a party at Perez-Medina's Dodge City home, Perez-Medina grabbed Ivan Valcarcel-Arias from behind and cut Valcarcel-Arias' cheek with a knife. After conviction, Perez-Medina received a 41-month prison sentence and 36 months of postrelease supervision. He was also ordered to register as a violent offender under the Kansas Offender Registration Act.

    On appeal to the Court of Appeals, Perez-Medina raised multiple issues. The court concluded that none of the issues warranted reversal of his conviction or sentence. Perez-Medina petitioned the Supreme Court to review the decision, and the court granted the request.

    Perez-Medina argued that the district court should have instructed the jury on the lesser crime of reckless aggravated battery, in addition to the charged crime. For purposes of the appeal, the court assumed that it was error to not instruct on the lesser crime but concluded that any error was harmless. Based on the evidence presented at trial, the jury did not have a competing narrative of reckless action to allow it to reach the conclusion that Perez-Medina had acted recklessly. An equally divided court also affirmed Perez-Medina's registration requirement.

    Appeal No. 115,628: In re Estate of Roxie A. Moore, deceased

    Archived oral argument video

    In the presence of witnesses, a woman asked her former daughter-in-law to sign, on the woman's behalf, a transfer-on-death deed assigning real property to the former daughter-in-law. The woman died, and her son challenged the validity of the transfer-on-death deed. The Cowley County District Court upheld the deed's validity, and the Court of Appeals affirmed.

    The Supreme Court granted review, and Justice Eric Rosen, writing for the Supreme Court majority, affirmed the lower courts. The majority examined the common-law doctrine of amanuensis, which applies to an individual who puts in writing what another person has dictated.  When an amanuensis writes a signature for a person in the presence of that person and at that person's direction, the signature becomes the signature of the person for whom it is made. The majority held that the doctrine operated to give the transfer-on-death deed legal effect. The Supreme Court majority held that a party may prove, through the testimony of witnesses or other competent evidence, a mistake made by a notary when acknowledging the execution of a deed. The court explained the burdens of proof required in such cases to protect against fraud and self-enrichment.

    Justice Caleb Stegall wrote a concurring opinion agreeing with the application of amanuensis law to this case and the principal holdings, but criticizing the majority's interpretation of the law of agency as it might be applied in other cases. Justice Lee Johnson dissented, arguing that the Kansas statutory scheme does not allow an amanuensis to sign transfer-on-death deeds. He cautioned against the opportunity for fraudulent transfers under the majority's holdings.

    Appeal No. 118,914: In re Care and Treatment of Robert J. Sigler

    Archived oral argument video

    The Supreme Court affirmed the jury verdict finding Sigler was a sexually violent predator subject to civil commitment under the Kansas Sexually Violent Predator Act. This was the State's second attempt to civilly commit Sigler. The first attempt failed after the Barton County District Court found the State failed to meet its burden to show beyond a reasonable doubt that Sigler was likely to act out on his mental abnormality or personality disorder or that he had serious difficulty controlling his behavior. Sigler was released to parole in July 2015. The State filed a new petition to civilly commit Sigler after Sigler's parole was revoked. Sigler asked the district court to rule the second proceeding was procedurally barred. The district court disagreed, holding a second proceeding was allowed based on a material change in Sigler's mental abnormality or personality disorder or in his ability to control his behavior. The Supreme Court agreed. Sigler also argued his civil commitment should be reversed because the district court did not declare a mistrial of its own accord when a State witness testified incorrectly that Sigler had been civilly committed in an earlier proceeding that was overturned on appeal. The Supreme Court disagreed that this incorrect testimony required the district court to declare a mistrial.

    Appeal No. 116,252: State of Kansas v. Terry R. Ballou Sr.

    Archived oral argument video

    Ballou appealed his convictions and sentence in Miami County District Court for rape and aggravated indecent liberties with a child. The Court of Appeals affirmed his convictions and sentence, finding no reversible error. The Supreme Court affirmed, holding that although the State erroneously misstated facts in its closing argument, the error was not reversible. The Supreme Court rejected Ballou's challenge to the admission of a video recording of a forensic interview of the child victim, holding it was not expert testimony and Ballou had not shown the interviewer used unreliable methods. The Supreme Court also held Ballou failed to preserve his pretrial objection to the admission of prior acts of sexual misconduct because he did not renew his objection when the evidence was introduced at trial. Additionally, the Supreme Court held Ballou failed to show he was entitled to an independent psychological evaluation of the victim, and further rejected Ballou's claim that cumulative error denied him a fair trial.   

    Appeal No. 116,524: State of Kansas v. Dashaun Ray Howling

    Archived oral argument video

    The Supreme Court affirmed Howling's convictions for one count of aggravated criminal sodomy. The court rejected Howling's argument that a videotaped interview of the victim was inadmissible expert testimony. The court noted other jurisdictions have adopted pretrial procedures to address defense arguments that evidence obtained through the forensic interview process is unreliable or otherwise inadmissible. The court did not need to decide in this case whether to adopt such a procedure because the Pratt County District Court concluded the statements resulting from the interview were sufficiently reliable to be admissible, which is the ultimate goal of such pretrial proceedings. The court also rejected Howling's sufficiency of the evidence challenge, finding sufficient evidence supported a rational factfinder finding Howling guilty beyond a reasonable doubt.

    Appeal No. 114,944: State of Kansas v. Larry Laverne Toothman

    Archived oral argument video

    Toothman was convicted in Saline County for committing seven sex crimes against his teenaged niece. The Court of Appeals reversed one conviction for rape and one for aggravated criminal sodomy and remanded the case with directions to resentence Toothman for aggravated incest, a less severe offense, in their place. The Court of Appeals believed Toothman should be sentenced for aggravated incest because it was a more specific crime than rape or aggravated criminal sodomy, due to his familial relationship with the victim.

    In a unanimous opinion written by Justice Caleb Stegall, the Supreme Court held the Court of Appeals erred when it reversed Toothman's convictions for rape and aggravated criminal sodomy. The Supreme Court explained that aggravated incest criminalized "otherwise lawful sexual intercourse or sodomy" with a specified relative, but aggravated criminal sodomy and rape could never be "otherwise lawful." Thus, the Supreme Court held that aggravated incest is not a more specific crime than aggravated criminal sodomy or rape and affirmed Toothman's seven convictions.

    Appeal No. 116,505: State of Kansas v. Christopher Boothby

    Archived oral argument video

    Boothby was convicted of aggravated assault and criminal threat in Stevens County. On appeal, Boothby argued that the district court judge committed judicial misconduct when he commented during voir dire about a former case in which Boothby was charged with aggravated battery. The parties agreed that the district judge committed misconduct but disputed whether the error was harmless. Boothby also argued that the jury instruction, "Your verdict must be founded entirely upon the evidence admitted and the law as given in these instructions," was erroneous because it told the jury that it could not nullify.

    In a unanimous opinion written by Justice Caleb Stegall, the Supreme Court held the district court judge's erroneous comment was harmless beyond a reasonable doubt. The court announced a new rubric for reviewing erroneous judicial comments made in front of the jury that are not jury instructions or legal rulings, calling it "judicial comment error." The court explained that, from now on, judicial comment error will be analyzed in two steps: error and prejudice. If a judicial comment error is found, the State must prove beyond a reasonable doubt that the error did not affect the outcome of trial in light of the entire record. The court also held that the instruction telling the jury to base the verdict "entirely upon the evidence admitted and the law as given in these instructions" was legally correct and did not prevent the jury from exercising its power of nullification.

    Kansas Court of Appeals decisions released today

  • 23 Aug 2019 12:32 PM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions today:

    Appeal No. 114,971: David A. Noyce v. State of Kansas

    Summary calendar; no oral argument  

    The Supreme Court affirmed Sedgwick County District Court's summary denial of Noyce's request for habeas corpus relief in his case involving convictions for capital murder, premeditated first-degree murder, and aggravated arson. Noyce's convictions stemmed from his 1999 guilty plea to setting fire to a residence and killing his wife and 2-year-old son. Noyce filed his habeas corpus motion alleging ineffective assistance of trial counsel years after the Legislature's one-year deadline to file such claims. The court held Noyce failed to establish the deadline should be extended to prevent an obviously unfair result. The court reasoned Noyce's counsel negotiated a plea to avoid the death penalty, Noyce had not filed a motion to withdraw his plea but instead asked the district court to vacate his convictions with prejudice, and the legal argument Noyce relied on to reverse his first-degree premeditated murder conviction was not precedential until years after Noyce pleaded guilty. 

    Appeal No. 115,259: State of Kansas v. Dewayne V. Hambright

    Archived oral argument video 

    The Supreme Court vacated the probation portion of Hambright's sentence and remanded for resentencing because Sedgwick County District Court did not follow the Supreme Court's mandatory case law, which required the sentencing court to provide substantial and compelling reasons to increase the statutorily recommended term of probation.

    Appeal No. 115,602: State of Kansas v. Samuel Chavez

    Archived oral argument video

    The Supreme Court affirmed Chavez' stalking and criminal threat convictions in Wyandotte County District Court, rejecting his challenge to the sufficiency of the evidence supporting the stalking conviction. The court also held Chavez was not entitled to a jury instruction on the victim's implied waiver of a protection from abuse order because a protected person cannot unilaterally modify or extinguish a court order.

    Appeal No. 115,904: Kedrin D. Littlejohn v. State of Kansas

    Archived oral argument video

    In a K.S.A. 60-1507 action, the Supreme Court reaffirmed the requirement a movant must show exceptional circumstances that justify filing a second or a successive 60-1507 motion to avoid having the motion dismissed as an abuse of remedy. Littlejohn argued his trial counsel was ineffective for failing to pursue a defense of mental disease or defect during Littlejohn's jury trial for his role in a 2008 murder, but Sedgwick County District Court dismissed Littlejohn's 60-1507 motion as successive because Littlejohn already had unsuccessfully sought 60-1507 relief in a previous motion. The Court of Appeals reversed and remanded for an evidentiary hearing to determine whether Littlejohn's claims had any merit. The Supreme Court disagreed, finding the appropriate standard was whether Littlejohn demonstrated exceptional circumstances existed, which would excuse his failing to raise his claims during his previous 60-1507 motion. The court remanded to the Court of Appeals to apply the exceptional circumstances standard.

    Appeal No. 116,469: Warren Meats v. Kansas Department of Revenue

    Archived oral argument video 

    In a Johnson County case arising from the administrative suspension of a driver's license following a motorist's arrest for DUI, the Supreme Court held a $50 fee imposed as a precondition to being granted administrative review of the suspension, without any provision for indigency, was an unconstitutional violation of procedural due process rights. However, as Meats did not appeal the district court's ruling that the issue was moot as applied to him, he was not entitled to any relief. The court upheld the suspension of the motorist's license, finding the implied consent advisories used were legally sufficient to advise of legal consequences and the motorist received sufficient personal service of the notice of his license suspension.

    Appeal No 117,035: Michael S. Creecy v. Kansas Department of Revenue

    Archived oral argument video

    In a Johnson County case arising from the administrative suspension of a driver's license following a motorist's arrest for DUI, the Supreme Court held a $50 fee imposed as a precondition to being granted administrative review of the suspension, without any provision for indigency, was an unconstitutional violation of procedural due process rights. The court ordered the $50 fee be refunded but upheld the suspension of the motorist's license, finding the motorist received personal service of the notice of license suspension as required by statute, the motorist failed to prove his inability to complete the breath test was caused by a medical condition, and the implied consent advisories sufficiently advised the motorist of the potential legal consequences of failing or refusing to complete a post-arrest breath test. 

    Appeal No. 117,862: Brenda Rosendahl v. Kansas Department of Revenue

    Archived oral argument video 

    In this Miami County case, the Supreme Court reinstated the Kansas Department of Revenue's administrative suspension of Rosendahl's driving privileges. Rosendahl argued her license should not be suspended because the law enforcement officer did not have reasonable grounds to request an evidentiary breath test based on her post-driving alcohol consumption. The court rejected this argument because the officer did not maintain a posture of willful ignorance regarding Rosendahl's post-driving alcohol consumption; instead, the circumstances known to the officer when he requested the breath test did not indicate Rosendahl had consumed alcohol after driving.

    Kansas Court of Appeals decisions released today.
  • 16 Aug 2019 3:39 PM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions today:

    Appeal No. 118,387: Jason Oil Company, LLC v. Frank E. Litter, et al.

    Archived oral argument video

    This Rush County case is a quiet title action where, by deed, the grantor conveyed two tracts of real estate but retained the mineral interests for a "period of 20 years or as long thereafter" as minerals may be produced, a common practice in the oil and gas industry.The Supreme Court held the common law rule against perpetuities did not apply to void the grantee's future interest in the minerals.

    Appeal No 115,172: State of Kansas v. Billy Sartin

    Summary Calendar; no oral argument

    In this case originating from Sedgwick County, Sartin sought to correct an illegal sentence, arguing that his five prior out-of-state convictions were improperly classified as person crimes for criminal history purposes during sentencing. The Court of Appeals ruled that one of his prior convictions was properly scored as a person felony, but declined to consider the merits of the challenge to the other four convictions, finding that the inmate had not properly preserved those arguments. The Kansas Supreme Court affirmed the classification of the single prior conviction as a person crime, finding that the sentence was legal when it was pronounced in 1995 and that the inmate was relying on subsequent U.S. Supreme Court caselaw which was not decided until years after his sentence became final. However, the court remanded on the remaining four convictions with directions for the Court of Appeals to rule on the merits, finding that the statute allows a challenge to the legality of a sentence "at any time," including for the first time on appeal.

    Kansas Court of Appeals decisions released today.
  • 05 Aug 2019 2:43 PM | Tiffany Fisher (Administrator)

    Appeal No. 117,299: State of Kansas v. Gerardo G. Saucedo

    Summary calendar; no oral argument

    The Supreme Court vacated Saucedo's prison sentence for his two drug-related felony convictions and ordered Reno County District Court to resentence him with a criminal history score characterizing his prior Washington residential burglary conviction as a nonperson felony. The court held the Kansas criminal code does not have a comparable offense because the Washington crime's mental state element is, in some aspects, broader than the Kansas burglary statute.

    Appeal Nos. 116,641, 116,642, and 116,643: State of Kansas v. Joshua Ewing

    Summary Calendar; no oral argument 

    The Supreme Court ordered the Sedgwick County District Court to reconsider how it calculated the prison terms for Ewing, who was convicted in three separate cases of a total of three counts of felony theft and one count of aggravated burglary. The court held the district court should not have scored a prior Arkansas misdemeanor conviction for false imprisonment as a person offense under the Kansas sentencing guidelines. The court also held further proceedings are necessary to decide whether a prior Arkansas third-degree domestic battery conviction could be scored as a person offense.

    Appeal No. 116,333: In the matter of the estate of Ray V. Oroke, deceased 

    Archived oral argument video

    A testator filed his original will and codicil with the clerk of the probate court of his home county, as allowed by the statutes in place at the time. Years later he died, and heirs attempted to locate the will, but the district court clerk was unable to find it. After further searching failed to produce the will, the testator's daughter filed an intestate probate proceeding. While that proceeding was pending, the limitation period for probating a will passed. Shortly afterward, the clerk located the will and codicil, and the testator's stepdaughter filed a separate petition to probate the will. The Jefferson County District Court admitted the will to probate, and the daughter appealed to the Court of Appeals, which reversed.

    On review by the Kansas Supreme Court, Senior Judge Michael J. Malone, sitting in for Justice Marla Luckert, wrote for a unanimous court, reversing the Court of Appeals, affirming the district court, and remanding to the district court The Supreme Court held that the misplacing of the will by the court clerk, who was the legal custodian of the will and a judicial employee, was a unique circumstance that operated to toll the statute of limitations and give effect to the testator's intentions. The court also awarded appellate attorney fees to the prevailing heirs.

    Appeal No. 116,356: State of Kansas v. Darrin D. Hirsh

    Archived oral argument video 

    The Supreme Court has affirmed in part, reversed in part, and vacated in part Hirsh's convictions and remanded his case for further proceedings.

    Hirsh assaulted his wife and threatened her and their children with violence. During the ensuing trial, one of the witnesses—an undersheriff called on Hirsh's behalf—produced a report with evidence inconsistent with the testimony of a witness. After he was convicted, Hirsh filed a motion for a new trial based in part on the late disclosure of the report, which was denied by a Barton County District Court.

    On appeal, Hirsh argued that his due process rights were violated by the late disclosure of exculpatory evidence in the possession of the State under the Fourteenth Amendment to the United States Constitution. The Supreme Court disagreed with Hirsh. Even assuming the information in the report could have been used by Hirsh had it been disclosed earlier in the trial, the court was confident that the outcome was not undermined because the information was not material.

    Kansas Court of Appeals decisions released.


  • 31 Jul 2019 10:44 AM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions July 26th:

    Appeal No. 116,133: State of Kansas v. Daniel J. Christian

    Archived oral argument video

    Christian moved to suppress evidence Hutchinson police officers discovered on him and in his vehicle. Reno County District Court denied his motion, finding the arresting officer had a valid basis to detain and search him. The Court of Appeals held the officer did not have a valid basis to initially detain Christian but allowed the use of the evidence because it concluded the officer's observation of an expired license tag as he approached the vehicle provided a separate lawful basis for the detention. The Supreme Court reversed the district court and the Court of Appeals, holding the officer's discovery of the expired license tag and the evidence that followed was derivative evidence that flowed directly from the unjustified initial stop. The court held the evidence should have been suppressed.

    Appeal No 117,059: State of Kansas v. Rogelio Soto Jr.

    Archived oral argument video 

    The Supreme Court reversed a Sedgwick County District Court decision denying Soto's motion for a new trial based on newly discovered, potentially exculpatory evidence. After Soto's conviction for first-degree premeditated murder was affirmed on appeal but before he could be resentenced on remand to district court, evidence contradicting a part of the testimony of one of the State's witnesses surfaced. Soto argued the district judge erred by failing to recognize he had the power to address the merits of his request for a new trial based on this evidence. The Supreme Court held the district judge abused his discretion in denying Soto's new trial motion without reaching the merits of whether the evidence merited a new trial. It remanded Soto's case to the district court so the judge could evaluate the evidence.

    Appeal No. 118,640: State of Kansas v. Lee Sawzer Sanders 

    Archived oral argument video

    Sanders filed a motion to suppress evidence found after Topeka police officers stopped and searched him in a parking lot. Shawnee County District Court granted Sanders' motion, finding the officers did not have a lawful basis to stop him. The district court noted the officers discovered an outstanding arrest warrant for Sanders during the course of the stop but held the discovery of the warrant did not sufficiently break the connection between the unlawful stop and subsequent discovery of the evidence. The Court of Appeals disagreed. The Supreme Court reversed the Court of Appeals and affirmed the district court. The court agreed officers lacked a proper basis to stop Sanders and held the discovery of the warrant was not a sufficient intervening circumstance because the officers searched Sanders and seized the evidence before they learned about the warrant.

    Kansas Court of Appeals decisions released.


  • 29 Jul 2019 5:02 PM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions July 19:

    Appeal No. 117,850: State of Kansas v. Michael Ross

    Archived oral argument video 

    In a decision written by Justice Eric Rosen, the Supreme Court affirmed Ross' convictions for felony murder, second-degree intentional murder as a lesser included offense, and abuse of a child in Sedgwick County District Court. The court held that the prosecutor's misstatement of the law did not prejudice Ross, that the absence of a jury instruction on reckless second-degree murder was harmless, that the district court did not abuse its discretion when it admitted two recorded jail calls, and that cumulative error did not deprive Ross of a fair trial.

    Appeal No 115,776: In re Paternity of S.M.J.

    Archived oral argument video

    The Supreme Court vacated a Douglas County District Court decision holding Ogle in contempt, and his case has been remanded to the district court for reconsideration. Ogle was held in contempt because he violated an order not to slander Whitney D. Jacobs. On appeal, a Court of Appeals panel vacated the district court's contempt order, in part, because the statute governing contempt required Ogle's presence at the contempt hearing before it could proceed. Neither Ogle nor his attorney had been present at the hearing.  

    Jacobs filed a petition for review with the Supreme Court, arguing that the statute did not require Ogle's presence. The Supreme Court disagreed with Jacobs. The contempt statute allows a district judge to proceed with a contempt hearing only once the person accused of contemptuous conduct is present, not before

    Appeal Nos. 114,897 and 114,898: State v. David G. Lundberg and Michael L. Elzufon

    Archived oral argument video

    The State charged Minnesota residents David Lundberg and Michael Elzufon with selling or offering to sell unregistered securities and committing fraud in selling or offering to sell securities. The sales at issue were made through intermediaries who resided in California and resulted in sales to non-Kansas residents. The Supreme Court affirmed Sedgwick County District Judge Benjamin Burgess' order dismissing criminal charges against Lundberg and Elzufon. The Kansas Uniform Securities Act (KUSA) authorizes criminal prosecution of a defendant for acts related to the sale of a security when the offer to sell or the sale was made in Kansas. But Kansas' jurisdiction is statutorily limited to situations in which the offer originates within the territorial boundaries of Kansas. The parties' stipulated facts showed no step of the sales or offer of sales process occurred within Kansas' territorial jurisdiction. Justice Marla Luckert dissented. She was joined by Justices Carol Beier and Eric Rosen.

    Appeal No. 115,036: State of Kansas v. Yamuna Rizal

    Archived oral argument video

    In a decision written by Justice Caleb Stegall, the Supreme Court affirmed Rizal's conviction for possession of a controlled substance with the intent to distribute it a gas station she owned in Johnson County. On appeal, Rizal claimed her conviction should be reversed because she believed the product she sold contained lawful incense, not a controlled substance, and the State failed to prove that she knew the nature of the substance she sold. The Supreme Court ruled that to convict a defendant of possession with intent to distribute a controlled substance, the State must prove the defendant had knowledge of the nature of the controlled substance. This knowledge requirement can be established by proving the defendant either knew the identity of the substance or knew that the substance was controlled. But the court upheld Rizal's conviction because the State proved that Rizal knew she was selling a controlled substance.

    Appeal No. 114,635: State of Kansas v. Ronald Cottrell 

    Summary calendar; no oral argument

    In a decision written by Justice Caleb Stegall, the Supreme Court affirmed Cottrell's convictions for distribution of a controlled substance and conspiracy to distribute a controlled substance. Cottrell illegally sold prescription narcotics to an undercover detective at a QuikTrip in Sedgwick County. On appeal, he challenged jury instructions for both crimes and argued the district court erred when it denied his motion for acquittal. The Supreme Court upheld Cottrell's convictions, ruling the conspiracy instruction was not erroneous, Cottrell invited any error in the distribution of a controlled substance instruction, and the evidence was sufficient to deny his motion for acquittal.

    Kansas Court of Appeals decisions released.

  • 12 Jul 2019 2:41 PM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions today: 

    Appeal No. 114,726: State of Kansas v. Sameli G. Roberts

    Summary calendar; no oral argument

    The Supreme Court affirmed the summary denial of Roberts' motion for post-conviction relief from his Sedgwick County convictions for aggravated burglary, criminal restraint, kidnapping, aggravated assault on a law enforcement officer, and four counts of aggravated robbery. The court held the district court did not violate Robert's due process rights when it considered the State's response to Robert's motion without appointing counsel to represent Roberts because viewing the State's response was not the functional equivalent of a hearing. The court also held Roberts' motion alleging ineffective assistance of counsel, violation of his right to speedy trial, and violation of his right to be present at trial was procedurally barred because he had not established exceptions to the rules prohibiting untimely and successive motions.

    Appeal No. 115,037: State of Kansas v. Jeffery S. Redding

    Archived oral argument video

    The Supreme Court affirmed the summary denial of Redding's motion to correct an illegal sentence involving his sentences for rape and aggravated indecent liberties with a child The court held the Rice County District Court did not violate Redding's due process rights when it considered the State's response to Redding's motion without appointing counsel to represent Redding because viewing the State's response was not the functional equivalent of a hearing. The court also rejected Redding's argument that his departure sentence was illegal because the district court did not consider Redding's written allocution as a second motion to further depart to a still shorter sentence.

    Appeal No. 115,129: Alcena M Dawson v. State of Kansas 

    Summary calendar; no oral argument

    The Supreme Court affirmed the summary denial of Dawson's motion for post-conviction relief from his Sedgwick County conviction for rape. The court held the district court did not violate Dawson's due process rights when it considered the State's response to Dawson's motion without appointing counsel to represent Dawson because viewing the State's response was not the functional equivalent of a hearing. The court also held Dawson had not established exceptional circumstances to permit a merits review of his ineffective assistance of counsel claims in a successive post-conviction motion; Dawson's claims were known to him during, or immediately following, his trial, and the claims were related to those that were raised and rejected in his prior 60-1507 motions.

    Appeal No. 115,149: Reginald Stewart v. State of Kansas 

    Archived oral argument video

    The Supreme Court affirmed the summary denial of Stewart's motion for post-conviction relief from his Sedgwick County aggravated robbery conviction. The court held the district court did not violate Stewart's due process rights when it considered the State's response to Stewart's motion without appointing counsel to represent Stewart because viewing the State's response was not the functional equivalent of a hearing. The court also affirmed the district court's summary denial of Stewart's motion, rejecting his ineffective assistance of counsel claims as well as other claims that were too conclusory to review on appeal.

    Appeal No. 115,662: Fidelis K. Thunko v. State of Kansas 

    Summary calendar; no oral argument

    The Supreme Court affirmed the summary denial of Thuko's motion for post-conviction relief from his Sedgwick County convictions for rape and attempted rape. The court held the district court did not violate Thuko's due process rights when it considered the State's response to Thuko's motion without appointing counsel to represent Thuko because viewing the State's response was not the functional equivalent of a hearing. The court also held Thuko's motion alleging a violation of his right to be present at trial, jury instruction error, and ineffective assistance of appellate counsel was procedurally barred because he had not established exceptions to the rules prohibiting untimely and successive motions.

    Appeal No. 115,401: Terral Breedlove v. State of Kansas 

    Archived oral argument video

    In Breedlove's Sedgwick County case concerning a K.S.A 60-1507 movant's right to counsel, the court held that a district court's adoption of the State's response to the motion as its findings of fact and conclusions of law was not automatically reversible error because the movant has the burden to show error. The court also held the district court did not err when it considered the State's response to Breedlove's motion without appointing counsel to represent Breedlove because viewing the State's response was not the functional equivalent of a hearing. Finally, the court held that the district court erred when it assessed a pro se, indigent 60-1507 movant $195 for filing a dispositive motion, because the movant had already filed a poverty affidavit when he filed the motion and was not required to file a second poverty affidavit when he filed his motion for a summary disposition.

    Appeal No. 115,899: Edgar I. Sherwood v. State of Kansas 

    Summary calendar; no oral argument 

    The Supreme Court affirmed the summary denial of Sherwood's motion for post-conviction relief from his Sedgwick County convictions for rape and aggravated criminal sodomy. The court held the district court did not violate Sherwood's due process rights when it considered the State's response to Sherwood's motion without appointing counsel to represent him because considering the State's response did not constitute a hearing. The court also concluded summary denial was appropriate because Sherwood's motion was untimely and he failed to establish a manifest injustice to excuse the delay. 

    Appeal No. 116,251: Adrian M. Requena v. State of Kansas 

    Summary calendar; no oral argument 

    The Supreme Court affirmed the summary denial of Requena's motion for post-conviction relief from his Butler County rape conviction. The court held the district court did not violate Requena's due process rights when it considered the State's response to Requena's motion without appointing counsel to represent him because considering the State's response did not constitute a hearing. The court also concluded summary denial was appropriate because Requena's motion was untimely and he failed to establish a manifest injustice to excuse the delay. 

    Appeal No. 117,156: State of Kansas v. Derrick Laughlin 

    Summary calendar; no oral argument 

    The Supreme Court affirmed the summary denial of Laughlin's motion to correct an illegal sentence and motion to withdraw his guilty plea to felony murder in Sedgwick County. The court held the district court did not violate Laughlin's due process rights when it considered the State's response to these motions without appointing counsel to represent Laughlin because considering the State's response did not constitute a hearing.

    Appeal Nos. 117,368; 117,369; 117,370; 117,371; and 117,372: In the Interests of A.A.-F, M.A.-F, F.A.-F, B.C., and J.S., Minor Children 

    Archived oral argument video

    The Supreme Court affirmed the Geary County District Court determination that it had subject matter jurisdiction to hear child in need of care proceedings concerning five children after the case had been transferred from a California court after the children's mother returned to live in Kansas. The Supreme Court concluded it did not have authority on the facts of this case to review the California trial court's decision to transfer the case to Kansas. Any challenge to the California court's decision should have occurred in California. The Supreme Court also determined the district court satisfied minimal constitutional due process protections that accorded mother an opportunity to be heard even though the Kansas district court failed to hold a statutorily required permanency hearing within the time allowed by Kansas statute.

    Appeal Nos. 115,887; 115,888; and 115,889: State of Kansas v. Jacob J. McAlister Jr. 

    Archived oral argument video

    McAlister was sentenced in Finney County in 1996 in three separate cases. In 2015 he filed a K.S.A. 22-3504 motion challenging the legality of his sentences, arguing that his prior burglary convictions were improperly scored as person felonies when calculating his criminal history score. The Supreme Court held that the legality of a sentence is determined by the law in effect when it is pronounced, and that McAlister could not invoke later changes in the law to transform his legal sentence into an illegal one under K.S.A. 22-3504.

    Appeal No. 116,530: State of Kansas v. Alcena M Dawson 

    Archived oral argument video

    The Supreme Court affirmed the Sedgwick County District Court's denial of Dawson's K.S.A. 22-3504 motion to correct an illegal sentence, holding that Dawson's sentence, which was legal when pronounced in 1997, was not later transformed into an illegal sentence by subsequent changes in the law.

    Appeal Nos. 114,432 and 115,637: State of Kansas v. Previn Tauer 

    Summary calendar; no oral argument

    The Supreme Court affirmed the Sedgwick County District Court's denial of Tauer's K.S.A. 22-3504 motion to correct an illegal sentence, holding that Tauer's sentence, which was legal when pronounced in 1994, was not later transformed into an illegal sentence by subsequent changes in the law.

    Kansas Court of Appeals decisions released today

  • 02 Jul 2019 8:18 AM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions June 28:

    The first decision is for a case argued before the Supreme Court at its April 1 special session at The Lied Center in Lawrence

    Appeal No. 119,269: Manufacturing Inc., d/b/a The Vapebar Topeka and Puffs 'n' stuff LLC v. City of Topeka, Kansas

    Archived oral argument video

    In an opinion written by Justice Caleb Stegall, the Supreme Court reversed Shawnee County District Court's permanent injunction on Topeka Ordinance No. 20099 prohibiting the sale and purchase of cigarettes, electronic cigarettes, tobacco products, or liquid nicotine to and by any person under 21 years of age. Vapebar challenged the ordinance, arguing it was an unconstitutional exercise of Topeka's home rule power under article 12, section 5 of the Kansas Constitution because the ordinance conflicted with and was preempted by the Kansas Cigarette and Tobacco Products Act.

    The court held the ordinance is a constitutionally valid exercise of Topeka's home rule power. The act does not preempt the ordinance because legislative intent to preempt the field is not clearly manifested on the face of the act's provisions. Further, the ordinance does not conflict with the act because the ordinance does not prohibit what the act expressly authorizes, nor does it expressly authorize what the act prohibits.

    Appeal No. 114,050: State of Kansas v. Lloyde Dubry

    Summary calendar; no oral argument 

    The Supreme Court today upheld the criminal sentence of Dubry, who was convicted for a 2010 kidnapping. Dubry claimed Shawnee County District Court improperly scored a prior Wyoming conviction as a person crime. Following a line of cases decided recently, the court held Dubry's sentence was legal when it was imposed.

    Appeal No. 114,951: State of Kansas v. Scot E. Bacon II 

    Archived oral argument video 

    In an opinion written by Justice Caleb Stegall, the Supreme Court affirmed the Court of Appeals' decision to uphold Bacon's conviction as right for the wrong reason. Assuming Sedgwick County District Court erred in failing to inquire into an alleged conflict between Bacon and his attorney, the court held Bacon failed to establish any prejudice warranting a remand. Before Bacon's preliminary hearing, he filed in district court two pro se "Motion[s] for Diligence," which contained a copy of Kansas Rules of Professional Conduct 1.3 and part of the accompanying comments. The district court never inquired about the motions or whether Bacon was dissatisfied with this attorney. Before trial, Bacon hired his own private attorney. Because Bacon retained new counsel and failed to show how the delay in obtaining new counsel prejudiced him at trial, the court held there was nothing to remedy on remand and affirmed the Court of Appeals' decision to uphold Bacon's conviction.

    Appeal No. 115,111: State of Kansas v. Michael F. Russ 

    Summary calendar; no oral argument

    The Supreme Court today upheld the sentence of Russ, who was convicted for a 2015 attempted second-degree murder. Russ claimed Sedgwick County District Court improperly calculated his criminal history score by including a prior misdemeanor conviction under a Wichita municipal ordinance. Following a line of cases decided recently, the court held the district court properly calculated the criminal history score.

    Appeal No. 115,426: State of Kansas v. Marcus Thiasen Guein Jr. 

    Archived oral argument video

    The Supreme Court today affirmed in part and reversed in part the judgment of the Court of Appeals panel and reversed the decision of Johnson County District Court, remanding with directions for further proceedings. Guein challenged the admissibility at trial of statements he made to the arresting officer—both before and after the officer provided him with his Miranda warnings. He argued his pre-Miranda statement should have been suppressed as an improper custodial interrogation and his post-Miranda statement should have been suppressed as involuntary. The court held both statements should have been suppressed. Accordingly, the court reversed Guein's convictions and remanded for further proceedings. Two justices wrote separately, concurring in part and dissenting in part. They agreed Guein's post-Miranda statements should been have suppressed but disagreed the pre-Miranda statements also should have been suppressed.

    Appeal No. 117,422: State of Kansas v. Christopher Obregon 

    Archived oral argument video 

    The Supreme Court today ordered Geary County District Court to reconsider how it calculated the prison term for Obregon, who was convicted of one count each of marijuana possession with intent to distribute and cocaine possession with intent to distribute. The court held the district court needed to more closely examine a 2012 Florida battery conviction because it might not be properly scored as a person felony under the Kansas sentencing guidelines. The court also held Obregon should not be subject to state law requiring a six-month sentencing enhancement for possession or use of a firearm in the commission of his Kansas crimes.

    Appeal No. 117,945: State of Kansas v. Grover D. James 

    Archived oral argument video

    The Supreme Court today affirmed James' jury convictions in Sedgwick County District Court for the first-degree premeditated murder of Leon McClennon and criminal possession of a firearm. Although the court identified errors in James' case, the errors were not reversible standing alone or cumulatively.

    At trial, James admitted to firing the gun that killed McClennon but claimed he had been acting in self-defense and did not intend to kill McClennon. In arriving at its verdict, the jury necessarily rejected James' version of events. In addition to the charge for premeditated first-degree murder, the jury had been instructed on the lesser included crimes of intentional second-degree murder and, under a theory of imperfect self-defense, voluntary manslaughter. The jury also had been instructed on self-defense as an affirmative defense. The district court judge declined James' request to instruct the jury on reckless second-degree murder, reckless involuntary manslaughter, and imperfect self-defense involuntary manslaughter. 

    On appeal, the Supreme Court held the district judge erred by not instructing the jury on James' requested lesser included crimes. On the conflicting evidence admitted at trial, there was sufficient evidence a jury could have convicted James of one of the lesser crimes, making an instruction on those crimes both legally and factually appropriate. But, based on the other lesser included crimes the jury had considered, the jury necessarily rejected any version of events that could have led it to convict James of one of the lesser charges. Thus there was no reasonable probability the error affected the outcome of the trial, making the errors harmless.

    Appeal No. 119,027: In the Matter of Gregory V. Blume 

    Archived oral argument video

    The Supreme Court indefinitely suspended Blume of Overland Park from the practice of law. The court adopted a disciplinary hearing panel's findings of facts and conclusions of law related to Blume's violations regarding meritorious claims and contentions; candor toward a tribunal; compliance with a discovery request; respect for the rights of third persons; engaging in conduct involving fraud or deceit; and engaging in conduct prejudicial to the administration of justice. The court saw a lack of clear and convincing evidence Blume violated two rules related to filing of a frivolous motion in district court, but the court held Blume did file a frivolous motion before it. That motion had sought a continuance of oral argument. Blum's admissions during oral argument led the court to conclude its filing constituted violations relating to meritorious claims and contentions and engaging in conduct prejudicial to the administration of justice.

    Kansas Court of Appeals decisions released

  • 21 Jun 2019 3:31 PM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decision today:

    Appeal No. 117,461: State of Kansas v. Samuel Darrah

    Summary calendar; no oral argument 

    The Supreme Court affirmed the McPherson County District Court in imposing consecutive sentences for Darrah, who claimed the court abused its discretion in ordering his 100-month sentence for attempted aggravated kidnapping be consecutive to, instead of concurrent with, his hard-25 life sentence for felony murder. In support, Darrah argued he did not personally kidnap or fatally stab the victim and instead that two other individuals involved in the crimes played greater roles than he did. But given Darrah's leadership in the planning, coordinating, and carrying out of the crimes, the Supreme Court unanimously held that the sentencing court did not abuse its discretion in imposing consecutive sentences under K.S.A. 2018 Supp. 21-6819(b).

    Kansas Court of Appeals decisions released today

  • 21 Jun 2019 9:10 AM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions June 14: 

    Appeal No. 113,267: Luke Gannon, et al v. State of Kansas

    Archived oral argument video

    Gannon v State case page

    The Supreme Court, in the public school finance case of Gannon v. State, held the State has shown that the 2019 Legislature's scheduled base aid increases are in substantial compliance with the court's June 25, 2018, mandate. This is the court's seventh decision in the Gannon litigation.

    In 2018 the court had held that despite legislation enacted in 2017 and 2018, the State still had not met its burden of complying with the adequacy requirements of Article 6, section 6(b) of the Constitution of the people of Kansas.  That section obligates the Legislature to "make suitable provision for finance of the educational interests of the state."

    But even though the State had not met its burden, the court acknowledged in 2018 the State had expressed an intent to comply with the education adequacy threshold discussed in a 2006 school finance case, Montoy v. State. In what it referred to as its "Montoy safe harbor" plan, the State reasoned that if it returned to the basic funding formula approved in Montoy  for school year 2009-10 and fully funded that formula—including accounting for years of inflation—it would again reach a constitutionally adequate funding level

    After careful analysis, the 2018 court accepted the State's Montoy safe harbor approach. But it held that to satisfactorily address the remaining concerns with adequacy, the State needed to make timely financial adjustments in response to two specific inflation problems. The court stayed the issuance of the mandate more than one year—until June 30, 2019—or further order of the court for the State to resolve the identified inflation problems with its plan

    In response, the 2019 Legislature passed House Substitute for Senate Bill 16 (S.B. 16) in an effort to cover inflation with additional funding and thus complete its Montoy safe harbor remediation plan. On April 6, 2019, Governor Kelly signed S.B. 16 into law. The court today held that through S.B. 16's additional funding of the State's safe harbor plan—specifically the annual increases to base aid in the amount of about $90 million per year for four years—the State has substantially complied with the court's 2018 mandate. Although holding that S.B. 16's schedule for additional funding substantially complies with the mandate, the court retains jurisdiction to ensure continued implementation of the plan.

    Appeal No. 112,765: Diana K. Hilburn v Enerpipe Ltd.

    Archived oral argument video

    The Supreme Court struck down the statutory noneconomic damages cap in personal injury cases other than medical malpractice actions in Hilburn v. Enerpipe Ltd., ruling that the cap violates the right to trial by jury set out in section 5 of the Kansas Constitution Bill of Rights.

    A plurality of four justices held in favor of Hilburn, who was injured in a car-truck accident and whose jury award had been reduced by the cap under K.S.A. 60-19a02. The justices agreed that the cap improperly intruded upon the jury’s determination of the compensation owed personal injury plaintiffs such as Hilburn to redress their injuries. The language of section 5 states that the right of trial by jury “shall be inviolate.”

    Justice Carol A. Beier wrote the lead opinion for the plurality. She was joined by Justices Eric S Rosen and Lee A. Johnson. Justice Caleb Stegall concurred in the plurality judgment and in part of the lead opinion’s reasoning. Justices Marla Luckert and Dan Biles dissented. Chief Justice Lawton Nuss did not participate in the decision.

    The lead opinion departed from the reasoning of the Supreme Court’s 2012 decision in Miller v. Johnson, which dealt with a noneconomic damages cap on a medical malpractice jury award. The justices said that the Miller application of a specific legal test to analyze section 5 was erroneous. It “overlooked long-standing limitations on the Legislature’s power to modify the common law; overestimated the persuasive force of prior Kansas cases; and shortcut the necessary cost-benefit evaluation necessary when examining whether to keep or jettison originally erroneous precedent.” Although the plurality acknowledged that it is within the power of the Legislature to modify common law, “what may have been a mere common-law right to jury trial on the day before ratification of section 5 was no longer a mere common-law right from ratification onward.”

    Justice Stegall’s concurrence agreed that the legal test applied to analyze section 5 in Miller should be forsaken. He viewed the cap’s invasion of the “historic province of the jury to decide a contested matter” as a “close call” but ultimately concluded that the Legislature had run afoul of the plain and original public meaning of section 5.

    Justice Luckert, writing for herself and Justice Biles, would have upheld the cap by applying the legal test from Miller. In their view, various statutes and regulations mandating motor carrier liability insurance and K.S.A. 60-19a02 were “reasonably necessary in the public interest to promote the public welfare” and the Legislature had “substituted an adequate statutory remedy for Hilburn's right to have a jury determine her damages.” The dissenters also expressed concern that their colleagues downplayed the consequences of overruling Miller and that the decision "upends caselaw addressing jury trial limitations imposed in workers compensation, medical malpractice, no fault insurance, and general tort litigation."

    Appeal No. 113,472: State of Kansas v. Robert M. Weber

    Archived oral argument video 

    The Supreme Court rejected Weber's challenge of his sentence resulting from a 2007 attempted robbery conviction. Weber claimed the district court improperly considered a 1976 Michigan conviction when sentencing him for the Kansas crime. The court said Weber's sentence was legal at the time it was imposed and more recent Kansas caselaw had not changed that.

    Case No. 115,352: Kelly Casper v. Kansas Department of Revenue

    Archived oral argument video 

    The Kansas Department of Revenue suspended Casper's driving privileges after she was arrested and she refused to take a blood alcohol test. At an administrative hearing, KDOR affirmed the administrative action, concluding that law enforcement had reasonable grounds to believe she was operating a vehicle while under the influence of alcohol and was lawfully in custody. On appeal to the Sedgwick County District Court, the judge disagreed with the conclusion that the arresting officer had reasonable grounds to believe that she had been under the influence of alcohol and reinstated her driving privileges. The Court of Appeals disagreed and held that the district court abused its discretion and based its decision on findings that the evidence did not support. On review of that decision, Justice Eric Rosen, writing for a unanimous Supreme Court, reversed the Court of Appeals. The court noted that appellate courts do not reweigh the evidence and concluded that substantial evidence supported the district court's factual findings, which, in turn, led to correct legal determinations.

    Kansas Court of Appeals decisions released


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