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  • 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


  • 31 May 2019 3:04 PM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions today:

    Appeal No. 113,828: State of Kansas v. Anthony S. Smith

    Archived oral argument video 

    Smith filed a motion for jail credit, alleging he was entitled to nearly 18 months' credit against his prison sentence for time spent in custody while awaiting sentencing. A Sedgwick County district judge denied his motion. The Court of Appeals affirmed, finding Smith's motion had not established a jurisdictional basis for the motion. On review of that decision, the Supreme Court also affirmed. The court held Smith waived some arguments by failing to raise them in his petition for review and also failed to allege a clerical error in his motion for jail credit. These failures meant he failed to establish a jurisdictional basis for his motion to be considered.    

    Appeal No. 117,788: State of Kansas v. Cameron Lee Johnson

    Archived oral argument video

    The Supreme Court affirmed in part and vacated in part Johnson's sentences resulting from his no contest plea to felony murder, aggravated kidnapping, aggravated assault, and criminal possession of a firearm. The court affirmed a Montgomery County district judge's imposition of consecutive sentences on the felony murder and aggravated kidnapping counts but vacated other portions of the sentence that did not comply with Kansas law.

    Appeal No. 119,170: State of Kansas v. Christopher Shane Douglas 

    Summary calendar; no oral argument

    The Supreme Court affirmed a Court of Appeals decision dismissing and remanding the criminal case against Douglas for possession of a controlled substance and possession of drug paraphernalia. Douglas filed a motion to suppress the evidence collected by the police. At a hearing on the motion, a Reno County district judge suppressed the evidence but incorrectly said no description of the evidence was provided. A majority of a Court of Appeals panel reversed the district judge's decision and remanded with instructions to deny Douglas' motion to suppress The Supreme Court affirmed the decision of the Court of Appeals but changed the instructions on remand. The court instructed the district judge to review the record and make a decision based on a corrected understanding of the evidence.

    Appeal No. 120,818: In the Matter of Pamela J. Thompson 

    Archived oral argument video

    The Supreme Court disbarred Thompson, of Wichita. The court adopted findings of fact and conclusions of law from a disciplinary hearing panel that heard testimony establishing Thompson's misconduct. The disciplinary hearing panel found Thompson violated the Kansas Rules of Professional Conduct governing the safekeeping of property; conduct involving dishonesty, fraud, deceit, or misrepresentation; and conduct prejudicial to the administration of justice

    Kansas Court of Appeals decisions released today


  • 24 May 2019 10:15 AM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions May 17:

    Appeal No. 113,869: State of Kansas v. Stephen A. Macomber

    Archived oral argument video

    In a 4-3 decision, the Supreme Court affirmed Macomber's Shawnee County jury conviction for involuntary manslaughter for the 2010 killing of Ryan Lofton outside Lofton's southeast Topeka home. A majority of the court rejected Macomber's claim that he was entitled to a new trial after a district court error led to the jury receiving an incomplete description of the applicable self-defense immunity law. This was Macomber's second trial for the killing. In 2014, the Court of Appeals ordered the second trial after it reversed his first conviction for intentional second-degree murder. The charges resulted from Macomber's crime spree in 2010 that resulted in numerous convictions obtained over the course of multiple prosecutions in both Shawnee County and Marshall County. Lofton's killing was part of those occurrences.

    Appeal No. 116,586: State of Kansas v. Robin Smith

    Archived oral argument video

    The Supreme Court ordered Johnson County District Court to resentence Smith with directions to exclude a Missouri municipal ordinance violation from her criminal history score. Smith pleaded guilty in 2016 to trafficking contraband in jail. As a part of her sentencing, the district court used the ordinance violation to give her a longer jail term. The court held today the district court erred because the Kansas sentencing guidelines existing at the time Smith was sentenced precluded a sentencing court from scoring a municipal ordinance violation when the convicting jurisdiction's municipal code failed to designate that violation as either a felony or misdemeanor but used those designations for other violations.

    Appeal No. 119,270: In the Matter of the Petition for a Writ of Habeas Corpus by Rictor Bowman 

    Archived oral argument video

    The Supreme Court dismissed a criminal prosecution against Bowman for rape, aggravated criminal sodomy, and four counts of witness intimidation. During his trial in Saline County District Court, Bowman's 4-year-old alleged victim was called to testify but did not respond when asked to take the required oath. Because the child's testimony was the core of the State's case, the district court judge declared a mistrial and then decided Bowman could be tried again. Bowman appealed and argued that allowing the State a second chance to try him violated his right against double jeopardy.

    A majority of the court agreed with Bowman's argument and dismissed the case in a per curiam opinion. A plain reading of the mistrial statute did not permit the district judge to declare a mistrial, and Bowman's case did not fall under an exception in the Kansas double jeopardy statute.

    Justice Marla J. Luckert dissented from the result and reasoning of the majority. Her dissent was joined by Chief Justice Lawton R. Nuss and Justice Caleb J. Stegall.

    Kansas Court of Appeals decisions released today


  • 22 May 2019 12:21 PM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions May 10:

    Appeal No. 119,726: In the Matter of David E. Herron II

    Archived oral argument video 

    Herron II, of Overland Park, was suspended from the practice of law for 60 days for violating the Kansas Rules of Professional Conduct on confidentiality, candor to the tribunal, professional misconduct involving dishonesty, and professional misconduct prejudicial to the administration of justice.

    Appeal No. 115,869: Jeffrey D. Kudlacik v. Johnny's Shawnee, Inc. and Barley's Ltd.

    Archived oral argument video

    The Supreme Court refused to reconsider the state's longstanding Kansas caselaw that prevents a person injured by someone who is intoxicated from suing those who furnished the alcohol. The case arose when Kudlacik suffered serious injuries in a two-vehicle collision with a drunk driver. He sued two Johnson County restaurants alleging they continued to serve alcoholic beverages to the driver after it was obvious the driver was intoxicated.

    Michael Smith ran a red light at high speed through a Johnson County intersection and collided with Kudlacik's vehicle. Smith's blood alcohol content was 0.179. Kudlacik suffered extensive injuries. Before the collision, Smith consumed alcoholic beverages at Johnny's Shawnee and Barley's Bar.

    In declining to overrule caselaw that has been effective in Kansas since 1985, the court noted it was not clearly convinced the caselaw was wrong when first determined and also noted, "The Legislature remains free to chart the public policy course that abrogates the common-law rule. And for many years, it has elected not to do so."

    Appeal No. 115,657: State of Kansas v. Skyler Lee Brook

    Summary calendar; no oral argument 

    The Supreme Court affirmed correcting Brook's postrelease supervision term from two years to lifetime.

    Brook had pleaded no contest in Nemaha County District Court to sexual exploitation of a child. Imposition of his original prison sentence was initially suspended, and Brook was ordered to serve 36 months of probation. After he violated probation by committing another crime, the district judge revoked the probation and ordered Brook to serve the original underlying prison sentence and two years of postrelease supervision. The judge later learned that Brook should have originally received a lifetime postrelease supervision term because of his plea to a sexually violent crime. The judge then ordered the term corrected.

    On appeal, Brook raised two statutory challenges to the correction. The Supreme Court rejected both. The court also declined Brook's invitation to reconsider its previous holding that lifetime postrelease supervision for a first-time offender such as Brook―one older than 18 who is convicted of sexual exploitation of a child for crimes involving possession of pornographic images of children―is not categorically disproportionate and unconstitutional under the Eighth Amendment

    Appeal No. 117,275: State of Kansas v. Dominic J. Moore

    Summary calendar; no oral argument 

    The Supreme Courtvacated in part and remanded for resentencing by the Wyandotte County District Court. Moore challenged the district court's modification of his two nonvacated sentences in length and sequence when it resentenced his previously vacated hard-50 life sentence to a hard-25 life sentence. The Supreme Court unanimously held the district court erred by resentencing Moore's two nonvacated, on-grid sentences in length and by changing them from concurrent to consecutive to each other and the hard-25. Accordingly, the Supreme Court vacated his sentences in part and remanded for the district court to reinstate the original sentences for the on-grid convictions and for those sentences to run concurrent with each other and the new hard-25 sentence.

    Appeal No. 116,648: State of Kansas v. Alejandro Arturo Garcia-Garcia

    Archived oral argument video 

    The Supreme Court upheld Garcia-Garcia's convictions in Montgomery County District Court for attempted capital murder, kidnapping, burglary, and interference with law enforcement. His Kansas crimes arose from a high-speed car chase that began in Oklahoma. In affirming his convictions, the court rejected claims that the district court erred by admitting the evidence regarding his criminal acts in Oklahoma, permitting prosecutorial error, and failing to provide a jury with a lesser-included-offense instruction. But the court did find the district court made an error in assessing an attorney fee reimbursement for the Board of Indigents' Defense Services and returned the case to reconsider that question.

    Appeal No. 120,518: In the Matter of Kevin T. Cure 

    Archived oral argument video

    The Supreme Court imposed an 18-month suspension from the practice of law on Cure, of Galena, for violating the Kansas Rules of Professional Conduct regarding the commission of a criminal act reflecting adversely on his honesty, trustworthiness, or fitness as a lawyer; misconduct prejudicial to the administration of justice; misconduct that adversely reflects on the his fitness to practice law; and the failure to report a felony charge.

    Appeal No. 117,305: State of Kansas v. Steven Wade Edwards

    Archived oral argument video 

    The Supreme Court affirmed the Sedgwick County District Court's denial of Edwards' motion to withdraw his guilty pleas and vacated the district court's order of lifetime postrelease supervision. Edwards pleaded guilty to two counts of felony murder, one count of aggravated burglary, and one count of aggravated robbery. As a result, he was sentenced to two concurrent life sentences for the killings and 141 additional months of incarceration for the lesser crimes. From the bench, the judge also ordered lifetime postrelease supervision and waived a Board of Indigents' Defense Services administrative fee.

    In an opinion written by Justice Caleb Stegall, the Supreme Court held that a sentencing court has no authority to order a term of postrelease supervision in conjunction with an off-grid, indeterminate life sentence. Thus, the Supreme Court vacated Edwards' lifetime postrelease supervision portion of his sentence and remanded with instructions to impose lifetime parole. The court also instructed the district court to correct the journal entry to properly reflect the judge's waiver of the BIDS administrative fee. Because a judge's oral pronouncement is controlling, the journal entry imposing a BIDS administration fee was a clerical error that could be corrected at any time. Lastly, the Supreme Court affirmed the district court's denial of Edwards' motion to withdraw his guilty pleas because the district court did not abuse its discretion. 

    Kansas Court of Appeals decisions released


  • 22 Apr 2019 4:44 PM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions on April 19:

    Appeal No. 112,834: State of Kansas v. Kenneth Boysaw

    Archived oral argument video

    A jury convicted Boysaw of one count of aggravated indecent liberties with a child. The Court of Appeals affirmed the conviction, and the Supreme Court granted review. Boysaw challenged the admission of evidence of prior sexual misconduct under K.S.A. 60-455 for the purpose of showing a propensity to commit the charged offense. Justice Eric Rosen, writing for a unanimous Supreme Court, held K.S.A. 60-455(d) satisfies federal constitutional due process requirements. The court declined to decide whether the statute violates the Kansas Constitution Bill of Rights, noting the argument was insufficiently preserved and articulated for a determinative ruling. The court also considered whether the probative value of the evidence outweighed its prejudicial effect The court held Sedgwick County District Court had engaged in an exemplary examination of the factors relating to proof or prejudice and did not abuse its discretion in admitting the evidence. Finally, the court determined the evidence sufficed to support the conviction and there were no infirmities in the sentencing process. The decisions of the district court and the Court of Appeals were affirmed.

    Appeal No. 114,325: State of Kansas v. Murad Razzaq

    Archived oral argument video

    A jury convicted Razzaq of one count of aggravated indecent liberties with a child. The Court of Appeals affirmed the conviction, and the Supreme Court granted review. The appeal presented several issues in common with State v. Boysaw. Writing for a unanimous Supreme Court, Justice Eric Rosen held the introduction of K.S.A. 60-455(d) evidence of prior sexual misconduct was not unconstitutional under either the federal or Kansas constitutions. The court also found no violations of speedy trial requirements or constitutional sentencing mandates. The decisions of Sedgwick County District Court and the Court of Appeals were affirmed.

    Appeal No. 115,648: State of Kansas v. James A Qualls III

    Archived oral argument video

    Qualls shot and killed a man in the course of an angry confrontation in a bar. A jury found him guilty of premeditated first-degree murder. In a previous appeal, the conviction was reversed because Shawnee County District Court failed to give proper lesser included offense instructions. On retrial, a jury again found him guilty, and he again appealed. He raised several issues on appeal, but the court elected to address only one of those issues, finding it dispositive. Writing for a unanimous Supreme Court, Justice Eric Rosen held the district court committed reversible error when it refused to give the self-defense instruction Qualls requested. The court noted substantial evidence supported an instruction that Qualls could be found not guilty if he was defending himself against a reasonably perceived threat of imminent harm. The conviction was reversed, and the case was remanded to district court.

    Appeal No. 115,763: Timmy Glaze v. J.K. Williams LLC

    Archived oral argument video

    In a per curiam decision, the Supreme Court affirmed the dismissal of Glaze's workers compensation claim because Glaze did not file a motion for an extension within three years of filling an application for hearing. A majority of the court concluded K.S.A. 2011 Supp. 44-523(f) required this result. Justice Eric Rosen, in an opinion joined by Justices Lee Johnson and Dan Biles, dissented. Rosen concluded the statute permitted an administrative law judge to grant an extension whenever the claimant showed good cause, regardless of whether the claimant filed a motion for extension within the three-year time period. 

    Appeal No. 116,167: Helen Loree Knoll v. Olathe School District No 233

    Archived oral argument video

    In a In a per curiam decision, the Supreme Court concluded K.S.A. 2011 Supp. 44-523(f)(1) required the dismissal of Knoll's workers compensation claim because Knoll did not file her motion for extension within three years from filing her application for hearing. Knoll argued the 2009 version of K.S.A. 44-523, which gave a claimant five years to file a motion for extension, governed her claim. The Supreme Court rejected this argument because the 2011 version of the statute had taken effect by the time Knoll filed her application for hearing. Justice Eric Rosen dissented because he did not interpret K.S.A. 2011 Supp. 44-523(f)(1) to require dismissal when a claimant failed to file a motion for extension within three years of filing an application for hearing. Justices Lee Johnson and Dan Biles joined in this dissent.  

    Appeal No. 117,315: State of Kansas v. Jimmy Lee Murdock

    Archived oral argument video 

    For the second time, the Supreme Court reversed the Shawnee County District Court's calculation of Murdock's criminal history score and remanded for resentencing.

    In Murdock's first appeal, he argued the district court miscalculated his criminal history score when it classified his prior out-of-state crimes as person felonies, resulting in a criminal history score of A. The Supreme Court reversed and remanded, holding Murdock's prior out-of-state convictions had to be scored as nonperson crimes. At resentencing, the district court followed this mandate and found Murdock had a criminal history score of C. But shortly after Murdock was resentenced, the Supreme Court decided State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015), which overruled Murdock's case. The State promptly moved to correct Murdock's second sentence, claiming it was illegal based on Keel The district court granted the State's motion and sentenced Murdock a third time, finding he had a criminal history score of A. Murdock appealed again, arguing his second sentence was legally imposed and it did not become illegal after Keel changed the law. 

    In an opinion written by Justice Caleb Stegall, the Supreme Court held the legality of a sentence under K.S.A. 22-3504 is controlled by the law in effect at the time the sentence was pronounced. Therefore, a sentence that was legal when pronounced does not become illegal if the law subsequently changes. The court concluded Murdock's second sentence was legal when pronounced, Keel subsequently changed the law, and that change did not make Murdock's sentence illegal. Accordingly, the court reversed and remanded with directions to reinstate Murdock's lawful sentence.

    Appeal No. 117,344: Jaylene Lambert, et al. v. John E. Peterson M.D., et al.

    Archived oral argument video 

    The Supreme Court affirmed Wyandotte County District Court's dismissal of Lambert's petition alleging medical malpractice and negligence claims resulting in the death of her husband, Stan Novak. The district court clerk file-stamped the petition indicating it was received one day after the statute of limitations periods expired. Lambert's counsel argued the petition was timely because she filed the petition one day earlier, but it was rejected by the clerk. Lambert submitted some materials to support her argument. None of the materials established Lambert's counsel filed her medical malpractice petition before the limitations period expired. Because Lambert failed to present evidence establishing a genuine issue of material fact regarding the date of the filing, the court held the district court properly dismissed her petition.

    Appeal No. 118,427: State of Kansas v. Joshua J. Robertson

    Summary calendar; no oral argument

    The Supreme Court affirmed Butler County District Court's summary dismissal of Robertson's motions to correct an illegal sentence and dismiss for lack of jurisdiction. The court concluded a motion to correct an illegal sentence cannot be used to collaterally attack a conviction based on allegations a defective complaint meant the district court lacked jurisdiction to convict. The district court also lacked jurisdiction to consider Robertson's motion to dismiss.

    Kansas Court of Appeals decisions released today



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