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Supreme Court releases for June 28, 2019

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

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